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Justice Sotomayor	concurring	false	Williamson v. Mazda Motor of America, Inc.	2011-02-23	null	https://www.courtlistener.com/opinion/205315/williamson-v-mazda-motor-of-america-inc/	https://www.courtlistener.com/api/rest/v3/clusters/205315/	2,011	2010-018	1	8	0	As the Court notes, this is not the first case in which the Court has encountered the express pre-emption provision and saving clause of the National Traffic and Motor Vehi cle Safety Act of 1966, 80 Stat. 718, 15 U.S. C. §1381 et seq. (1988 ed.) (recodified without substantive change at 49 U.S. C. §30101 et seq. (2006 ed. and Supp. III)). In Geier v. American Honda Motor Co., 529 U.S. 861 (2000), the Court concluded that the “saving clause (like the express pre-emption provision) does not bar the ordinary working of conflict pre-emption principles,” id., at 869, and therefore engaged in an implied pre-emption analysis. The majority and dissent in Geier agreed that “a court should not find pre-emption too readily in the absence of clear evidence of a conflict.” Id., at 885. I agree with the majority’s resolution of this case and with its reasoning. I write separately only to emphasize the Court’s rejection of an overreading of Geier that has developed since that opinion was issued. Geier does not stand, as the California Court of Appeal, 167 Cal. App. 4th 905, 918–919, 84 Cal. Rptr. 3d 545, 555– 556 (2008), other courts, and some of respondents’ amici seem to believe, for the proposition that any time an agency gives manufacturers a choice between two or more options, a tort suit that imposes liability on the basis of 2 WILLIAMSON v. MAZDA MOTOR OF AMERICA, INC. SOTOMAYOR, J., concurring one of the options is an obstacle to the achievement of a federal regulatory objective and may be pre-empted.* Rather, Geier turned on the fact that the agency, via Fed eral Motor Vehicle Safety Standard 208, “deliberately sought variety—a mix of several different passive re straint systems.” 529 U.S., at 878; ante, at 7. As the United States notes, “a conflict results only when the Safety Act (or regulations implementing the Safety Act) does not just set out options for compliance, but also pro vides that the regulated parties must remain free to choose among those options.” Brief for United States as Amicus Curiae 8. In other words, the mere fact that an agency regulation allows manufacturers a choice between options is insufficient to justify implied pre-emption; courts should only find pre-emption where evidence exists that an agency has a regulatory objective—e.g., obtaining a mix of passive restraint mechanisms, as in Geier—whose achievement depends on manufacturers having a choice between options. A link between a regulatory objective and the need for manufacturer choice to achieve that objective is the lynchpin of implied pre-emption when there is a saving clause. Absent strong indications from the agency that it needs manufacturers to have options in order to achieve a “sig nificant . . . regulatory objective,” ante, at 5, state tort suits are not “obstacle[s] to the accomplishment . . . of the full purposes and objectives” of federal law, Hines v. Davidowitz, 312 U.S. 52, 67 (1941). As the majority explains, the agency here gave no indication that its safety goals required the mixture of seatbelt types that resulted from manufacturers’ ability to choose different options. —————— See, e.g., Carden v. General Motors Corp., 509 F.3d 227, 230–232 (CA5 2007); Griffith v. General Motors Corp., 303 F.3d 1276, 1282 (CA11 2002); Heinricher v. Volvo Car Corp., 61 Mass. App. 313, 318– 319, 809 N.E.2d 1094, 1098 (2004). Cite as: 562 U. S. ____ (2011) 3 SOTOMAYOR, J., concurring Ante, at 8–12 (distinguishing the regulatory record in this case from that in Geier). Especially in light of the “statutory saving clause that foresees the likelihood of a continued meaningful role for state tort law,” ante, at 11, respondents have not carried their burden of establishing that the agency here “deliber ately sought variety” to achieve greater safety, Geier, 529 U.S., at 878. Therefore, the Williamsons’ tort suit does not present an obstacle to any “significant federal regula tory objective,” ante, at 5, and may not be pre-empted. For these reasons, I concur. Cite as: 562 U. S. ____ (2011) 1 THOMAS, J., concurring in judgment SUPREME COURT OF THE UNITED STATES _________________ No. 08–1314 _________________ DELBERT WILLIAMSON, ET AL., PETITIONERS v. MAZDA MOTOR OF AMERICA, INC., ET AL. ON WRIT OF CERTIORARI TO THE COURT OF APPEAL OF CALI- FORNIA, FOURTH APPELLATE DISTRICT, DIVISION THREE [February 23, 2011] JUSTICE THOMAS, concurring in the judgment. The Court concludes that the National Traffic and Mo tor Vehicle Safety Act of 1966 (Safety Act) and Federal Motor Vehicle Safety Standard 208 (FMVSS 208) do not pre-empt the Williamsons’ state tort lawsuit. I agree. But I reach this result by a more direct route: the Safety Act’s saving clause, which speaks directly to this question and answers it. See 49 U.S. C. §30103(e). I The plain text of the Safety Act resolves this case. Congress has instructed that “[c]ompliance with a motor vehicle safety standard prescribed under this chapter does not exempt a person from liability at common law.” Ibid. This saving clause “explicitly preserv[es] state common law actions.” Wyeth v. Levine, 555 U. S. ___, ___ (2009) (THOMAS, J., concurring in judgment) (slip op., at 18). Here, Mazda complied with FMVSS 208 when it chose to install a simple lap belt. According to Mazda, the Wil liamsons’ lawsuit alleging that it should have installed a lap-and-shoulder seatbelt instead is pre-empted. That argument is foreclosed by the saving clause; the William sons’ state tort action is not pre-empted. The majority does not rely on the Safety Act’s saving clause because this Court effectively read it out of the 2 WILLIAMSON v. MAZDA MOTOR OF AMERICA, INC. THOMAS, J., concurring in judgment statute in Geier v. American Honda Motor Co., 529 U.S. 861 (2000). In Geier, the Court interpreted the saving clause as simply cancelling out the statute’s express pre emption clause with respect to common-law tort actions. This left the Court free to consider the effect of conflict pre-emption principles on such tort actions. See id., at 869. But it makes no sense to read the express pre-emption clause in conjunction with the saving clause. See id., at 898 (Stevens, J., dissenting). The express pre-emption clause bars States from having any safety “standard appli cable to the same aspect of performance” as a federal standard unless it is “identical” to the federal one. §30103(b). That clause pre-empts States from establish ing “objective rule[s] prescribed by a legislature or an administrative agency” in competition with the federal standards; it says nothing about the tort lawsuits that are the focus of the saving clause. Id., at 896. Read inde pendently of the express pre-emption clause, the saving clause simply means what it says: FMVSS 208 does not pre-empt state common-law actions. II As in Geier, rather than following the plain text of the statute, the majority’s analysis turns on whether the tort lawsuit here “ ‘stands as an obstacle to the accomplish ment and execution of the full purposes and objectives’ ” of FMVSS 208. Ante, at 5 (quoting Hines v. Davidowitz, 312 U.S. 52, 67 (1941)). I have rejected purposes-and objectives pre-emption as inconsistent with the Constitu —————— * See also Sprietsma v. Mercury Marine, 537 U.S. 51, 63–64 (2002) (addressing a similar express pre-emption clause and saving clause in the Federal Boat Safety Act, and holding that it is “perfectly rational” for Congress to bar state “administrative and legislative regulations” while allowing “private damages remedies” to compensate accident victims). Cite as: 562 U. S. ____ (2011) 3 THOMAS, J., concurring in judgment tion because it turns entirely on extratextual “judicial suppositions.” Wyeth, supra, at ___ (slip op., at 22); see also Haywood v. Drown, 556 U. S. ___, ___ (2009) (dissent ing opinion) (slip op., at 26–27). Pre-emption occurs “by direct operation of the Suprem acy Clause,” Brown v. Hotel Employees, 468 U.S. 491, 501 (1984), which “requires that pre-emptive effect be given only to those federal standards and policies that are set forth in, or necessarily follow from, the statutory text that was produced through the constitutionally required bi cameral and presentment procedures.” Wyeth, 555 U. S., at ___ (slip op., at 5) (opinion of THOMAS, J.). In short, pre-emption must turn on the text of a federal statute or the regulations it authorizes. See id., at ___ (slip op., at 6); see also Geier, supra, at 911 (Stevens, J., dissenting). Purposes-and-objectives pre-emption—which by design roams beyond statutory or regulatory text—is thus wholly illegitimate. It instructs courts to pre-empt state laws based on judges’ “conceptions of a policy which Congress has not expressed and which is not plainly to be inferred from the legislation which it has enacted.” Hines, supra, at 75 (Stone, J., dissenting); Geier, supra, at 907 (opinion of Stevens, J.) (expressing concern about judges “running amok with our potentially boundless (and perhaps inade quately considered) [purposes-and-objectives pre-emption doctrine]”); see also Wyeth, supra, at ___ (slip op., at 13– 21) (opinion of THOMAS, J.) (recounting the history of the doctrine). The majority’s purposes-and-objectives pre-emption analysis displays the inherent constitutional problem with the doctrine. The Court begins with FMVSS 208, which allowed manufacturers to install either simple lap or lap and-shoulder seatbelts in the rear aisle seat of 1993 mini vans. The majority then turns to what it considers the primary issue: whether “that choice [was] a significant regulatory objective.” Ante, at 8 (emphasis added). Put 4 WILLIAMSON v. MAZDA MOTOR OF AMERICA, INC. THOMAS, J., concurring in judgment more plainly, the question is whether the regulators really wanted manufacturers to have a choice or did not really want them to have a choice but gave them one anyway. To answer that question, the majority engages in a “freewheeling, extratextual, and broad evaluatio[n] of the ‘purposes and objectives’ ” of FMVSS 208. Wyeth, supra, at ___ (slip op., at 23) (opinion of THOMAS, J.). The Court wades into a sea of agency musings and Government litigating positions and fishes for what the agency may have been thinking 20 years ago when it drafted the rele vant provision. After scrutinizing the 1989 Federal Regis ter, a letter written in 1994, and the Solicitor General’s present-day assurances, the Court finds that Department of Transportation liked the idea of lap-and-shoulder seat belts in all seats, but did not require them, primarily for cost-efficiency reasons and also because of some concern for ingress-egress around the belt mounts. Ante, at 8–11. From all of this, the majority determines that although the regulators specifically and intentionally gave manu facturers a choice between types of seatbelts, that choice was not a “significant regulatory objective” and so does not pre-empt state tort lawsuits. That the Court in Geier reached an opposite conclusion reveals the utterly unconstrained nature of purposes-and objectives pre-emption. There is certainly “considerable similarity between this case and Geier.” Ante, at 2. Just as in this case, Geier involved a choice offered to car manufacturers in FMVSS 208: whether to install airbags. Ante, at 8. And just as in this case, the Court in Geier relied on “history, the agency’s contemporaneous explana tion, and the Government’s current understanding” to determine the significance of that choice. Ante, at 7–8. Yet the Geier Court concluded that “giving auto manufac turers a choice among different kinds of passive restraint devices was a significant objective of the federal regula tion,” ante, at 6, and thus found the Geiers’ lawsuit pre Cite as: 562 U. S. ____ (2011) 5 THOMAS, J., concurring in judgment empted. The dispositive difference between this case and Geier— indeed, the only difference—is the majority’s “psycho analysis” of the regulators. United States v. Public Util. Comm’n of Cal., 345 U.S. 295, 319 (1953) (Jackson, J., concurring) (describing reliance on legislative history). The majority cites no difference on the face of FMVSS 208 between the airbag choice addressed in Geier and the seatbelt choice at issue in this case. According to the majority, to determine whether FMVSS 208 pre-empts a tort suit, courts apparently must embark on the same expedition undertaken here: sifting through the Federal Register, examining agency ruminations, and asking the Government what it currently thinks. Pre emption is then proper if the court decides that the regula tors thought the choice especially important, but not if the choice was only somewhat important. This quest roves far from the Safety Act and analyzes pre-emption based on a formless inquiry into how strongly an agency felt about the regulation it enacted 20 years ago. “[F]reeranging speculation about what the purposes of the [regulation] must have been” is not constitutionally proper in any case. Wyeth, supra, at ___ (slip op., at 15) (opinion of THOMAS, J.). The Supremacy Clause com mands that the “[l]aws of the United States,” not the unenacted hopes and dreams of the Department of Trans portation, “shall be the supreme Law of the Land.” U. S. Const., Art. VI, cl. 2. The impropriety is even more obvi ous here because the plain text of the Safety Act resolves this case. For these reasons, I concur in the judgment	As the Court notes, this is not the first case in which the Court has encountered the express pre-emption provision and saving clause of the National Traffic and Motor Vehi cle Safety Act of 1966, 15 U.S. C. et seq. (1988 ed.) (recodified without substantive change at 49 U.S. C. et seq. (2006 ed. and Supp. III)). In the Court concluded that the “saving clause (like the express pre-emption provision) does not bar the ordinary working of conflict pre-emption principles,” and therefore engaged in an implied pre-emption analysis. The majority and dissent in agreed that “a court should not find pre-emption too readily in the absence of clear evidence of a conflict.” I agree with the majority’s resolution of this case and with its reasoning. I write separately only to emphasize the Court’s rejection of an overreading of that has developed since that opinion was issued. does not stand, as the California Court of Appeal, 918–919, 555– 556 (2008), other courts, and some of respondents’ amici seem to believe, for the proposition that any time an agency gives manufacturers a choice between two or more options, a tort suit that imposes liability on the basis of 2 WILLIAMSON v. MAZDA MOTOR OF AMERICA, INC. SOTOMAYOR, J., concurring one of the options is an obstacle to the achievement of a federal regulatory objective and may be pre-empted.* Rather, turned on the fact that the agency, via Fed eral Motor Vehicle Safety Standard 208, “deliberately sought variety—a mix of several different passive re straint systems.” ; ante, at 7. As the United States notes, “a conflict results only when the Safety Act (or regulations implementing the Safety Act) does not just set out options for compliance, but also pro vides that the regulated parties must remain free to choose among those options.” Brief for United States as Amicus Curiae 8. In other words, the mere fact that an agency regulation allows manufacturers a choice between options is insufficient to justify implied pre-emption; courts should only find pre-emption where evidence exists that an agency has a regulatory objective—e.g., obtaining a mix of passive restraint mechanisms, as in —whose achievement depends on manufacturers having a choice between options. A link between a regulatory objective and the need for manufacturer choice to achieve that objective is the lynchpin of implied pre-emption when there is a saving clause. Absent strong indications from the agency that it needs manufacturers to have options in order to achieve a “sig nificant regulatory objective,” ante, at 5, state tort suits are not “obstacle[s] to the accomplishment of the full purposes and objectives” of federal law, v. Davidowitz, As the majority explains, the agency here gave no indication that its safety goals required the mixture of seatbelt types that resulted from manufacturers’ ability to choose different options. —————— See, e.g., 230–232 (CA5 2007); ; Cite as: 562 U. S. (2011) 3 SOTOMAYOR, J., concurring Ante, at 8–12 (distinguishing the regulatory record in this case from that in ). Especially in light of the “statutory saving clause that foresees the likelihood of a continued meaningful role for state tort law,” ante, at 11, respondents have not carried their burden of establishing that the agency here “deliber ately sought variety” to achieve greater safety, 529 U.S., at 878. Therefore, the Williamsons’ tort suit does not present an obstacle to any “significant federal regula tory objective,” ante, at 5, and may not be pre-empted. For these reasons, I concur. Cite as: 562 U. S. (2011) 1 THOMAS, J., concurring in judgment SUPREME COURT OF THE UNITED STATES No. 08–1314 DELBERT WILLIAMSON, ET AL., PETITIONERS v. MAZDA MOTOR OF AMERICA, INC., ET AL. ON WRIT OF CERTIORARI TO THE COURT OF APPEAL OF CALI- FORNIA, FOURTH APPELLATE DISTRICT, DIVISION THREE [February 23, 2011] JUSTICE THOMAS, concurring in the judgment. The Court concludes that the National Traffic and Mo tor Vehicle Safety Act of 1966 (Safety Act) and Federal Motor Vehicle Safety Standard 208 (FMVSS 208) do not pre-empt the Williamsons’ state tort lawsuit. I agree. But I reach this result by a more direct route: the Safety Act’s saving clause, which speaks directly to this question and answers it. See 49 U.S. C. I The plain text of the Safety Act resolves this case. Congress has instructed that “[c]ompliance with a motor vehicle safety standard prescribed under this chapter does not exempt a person from liability at common law.” This saving clause “explicitly preserv[es] state common law actions.” v. Levine, 555 U. S. (2009) (THOMAS, J., concurring in judgment) (slip op., at 18). Here, Mazda complied with FMVSS 208 when it chose to install a simple lap belt. According to Mazda, the Wil liamsons’ lawsuit alleging that it should have installed a lap-and-shoulder seatbelt instead is pre-empted. That argument is foreclosed by the saving clause; the William sons’ state tort action is not pre-empted. The majority does not rely on the Safety Act’s saving clause because this Court effectively read it out of the 2 WILLIAMSON v. MAZDA MOTOR OF AMERICA, INC. THOMAS, J., concurring in judgment statute in 529 U.S. 861 In the Court interpreted the saving clause as simply cancelling out the statute’s express pre emption clause with respect to common-law tort actions. This left the Court free to consider the effect of conflict pre-emption principles on such tort actions. See at 869. But it makes no sense to read the express pre-emption clause in conjunction with the saving clause. See at 898 The express pre-emption clause bars States from having any safety “standard appli cable to the same aspect of performance” as a federal standard unless it is “identical” to the federal one. That clause pre-empts States from establish ing “objective rule[s] prescribed by a legislature or an administrative agency” in competition with the federal standards; it says nothing about the tort lawsuits that are the focus of the saving clause. Read inde pendently of the express pre-emption clause, the saving clause simply means what it says: FMVSS 208 does not pre-empt state common-law actions. II As in rather than following the plain text of the statute, the majority’s analysis turns on whether the tort lawsuit here “ ‘stands as an obstacle to the accomplish ment and execution of the full purposes and objectives’ ” of FMVSS 208. Ante, at 5 ). I have rejected purposes-and objectives pre-emption as inconsistent with the Constitu —————— * See also (addressing a similar express pre-emption clause and saving clause in the Federal Boat Safety Act, and holding that it is “perfectly rational” for Congress to bar state “administrative and legislative regulations” while allowing “private damages remedies” to compensate accident victims). Cite as: 562 U. S. (2011) 3 THOMAS, J., concurring in judgment tion because it turns entirely on extratextual “judicial suppositions.” at (slip op., at 22); see also Haywood v. Drown, 556 U. S. (2009) (dissent ing opinion) (slip op., at 26–27). Pre-emption occurs “by direct operation of the Suprem acy Clause,” (1984), which “requires that pre-emptive effect be given only to those federal standards and policies that are set forth in, or necessarily follow from, the statutory text that was produced through the constitutionally required bi cameral and presentment procedures.” 555 U. S., at (slip op., at 5) (opinion of THOMAS, J.). In short, pre-emption must turn on the text of a federal statute or the regulations it authorizes. See at (slip op., at 6); see also Purposes-and-objectives pre-emption—which by design roams beyond statutory or regulatory text—is thus wholly illegitimate. It instructs courts to pre-empt state laws based on judges’ “conceptions of a policy which Congress has not expressed and which is not plainly to be inferred from the legislation which it has enacted.” at 75 (Stone, J., dissenting); (opinion of Stevens, J.) (expressing concern about judges “running amok with our potentially boundless (and perhaps inade quately considered) [purposes-and-objectives pre-emption doctrine]”); see also at (slip op., at 13– 21) (opinion of THOMAS, J.) (recounting the history of the doctrine). The majority’s purposes-and-objectives pre-emption analysis displays the inherent constitutional problem with the doctrine. The Court begins with FMVSS 208, which allowed manufacturers to install either simple lap or lap and-shoulder seatbelts in the rear aisle seat of 1993 mini vans. The majority then turns to what it considers the primary issue: whether “that choice [was] a significant regulatory objective.” Ante, at 8 (emphasis added). Put 4 WILLIAMSON v. MAZDA MOTOR OF AMERICA, INC. THOMAS, J., concurring in judgment more plainly, the question is whether the regulators really wanted manufacturers to have a choice or did not really want them to have a choice but gave them one anyway. To answer that question, the majority engages in a “freewheeling, extratextual, and broad evaluatio[n] of the ‘purposes and objectives’ ” of FMVSS 208. at (slip op., at 23) (opinion of THOMAS, J.). The Court wades into a sea of agency musings and Government litigating positions and fishes for what the agency may have been thinking 20 years ago when it drafted the rele vant provision. After scrutinizing the 1989 Federal Regis ter, a letter written in 1994, and the Solicitor General’s present-day assurances, the Court finds that Department of Transportation liked the idea of lap-and-shoulder seat belts in all seats, but did not require them, primarily for cost-efficiency reasons and also because of some concern for ingress-egress around the belt mounts. Ante, at 8–11. From all of this, the majority determines that although the regulators specifically and intentionally gave manu facturers a choice between types of seatbelts, that choice was not a “significant regulatory objective” and so does not pre-empt state tort lawsuits. That the Court in reached an opposite conclusion reveals the utterly unconstrained nature of purposes-and objectives pre-emption. There is certainly “considerable similarity between this case and” Ante, at 2. Just as in this case, involved a choice offered to car manufacturers in FMVSS 208: whether to install airbags. Ante, at 8. And just as in this case, the Court in relied on “history, the agency’s contemporaneous explana tion, and the Government’s current understanding” to determine the significance of that choice. Ante, at 7–8. Yet the Court concluded that “giving auto manufac turers a choice among different kinds of passive restraint devices was a significant objective of the federal regula tion,” ante, at 6, and thus found the s’ lawsuit pre Cite as: 562 U. S. (2011) 5 THOMAS, J., concurring in judgment empted. The dispositive difference between this case and — indeed, the only difference—is the majority’s “psycho analysis” of the regulators. United (Jackson, J., concurring) (describing reliance on legislative history). The majority cites no difference on the face of FMVSS 208 between the airbag choice addressed in and the seatbelt choice at issue in this case. According to the majority, to determine whether FMVSS 208 pre-empts a tort suit, courts apparently must embark on the same expedition undertaken here: sifting through the Federal Register, examining agency ruminations, and asking the Government what it currently thinks. Pre emption is then proper if the court decides that the regula tors thought the choice especially important, but not if the choice was only somewhat important. This quest roves far from the Safety Act and analyzes pre-emption based on a formless inquiry into how strongly an agency felt about the regulation it enacted 20 years ago. “[F]reeranging speculation about what the purposes of the [regulation] must have been” is not constitutionally proper in any case. at (slip op., at 15) (opinion of THOMAS, J.). The Supremacy Clause com mands that the “[l]aws of the United States,” not the unenacted hopes and dreams of the Department of Trans portation, “shall be the supreme Law of the Land.” U. S. Const., Art. VI, cl. 2. The impropriety is even more obvi ous here because the plain text of the Safety Act resolves this case. For these reasons, I concur in the judgment	1,836
Justice Rehnquist	majority	false	Locke v. Davey	2004-02-25	null	https://www.courtlistener.com/opinion/131166/locke-v-davey/	https://www.courtlistener.com/api/rest/v3/clusters/131166/	2,004	2003-035	2	7	2	The State of Washington established the Promise Scholarship Program to assist academically gifted students with postsecondary education expenses. In accordance with the State Constitution, students may not use the scholarship at an institution where they are pursuing a degree in devotional theology. We hold that such an exclusion from an otherwise inclusive aid program does not violate the Free Exercise Clause of the First Amendment. The Washington State Legislature found that "[s]tudents who work hard . . . and successfully complete high school with high academic marks may not have the financial ability to attend college because they cannot obtain financial aid or the financial aid is insufficient." Wash. Rev. Code Ann. § 28B.119.005 (West Supp. 2004). In 1999, to assist these high-achieving students, the legislature created the 716 Promise Scholarship Program, which provides a scholarship, renewable for one year, to eligible students for postsecondary education expenses. Students may spend their funds on any education-related expense, including room and board. The scholarships are funded through the State's general fund, and their amount varies each year depending on the annual appropriation, which is evenly prorated among the eligible students. Wash. Admin. Code § 250-80-050(2) (2003). The scholarship was worth $1,125 for academic year 1999-2000 and $1,542 for 2000-2001. To be eligible for the scholarship, a student must meet academic, income, and enrollment requirements. A student must graduate from a Washington public or private high school and either graduate in the top 15% of his graduating class, or attain on the first attempt a cumulative score of 1,200 or better on the Scholastic Assessment Test I or a score of 27 or better on the American College Test. §§ 250-80-020(12)(a) to (d). The student's family income must be less than 135% of the State's median. § 250-80-020(12)(e). Finally, the student must enroll "at least half time in an eligible postsecondary institution in the state of Washington," and may not pursue a degree in theology at that institution while receiving the scholarship. §§ 250-80-020(12)(f) to (g); see also Wash. Rev. Code Ann. § 28B.10.814 (West 1997) ("No aid shall be awarded to any student who is pursuing a degree in theology"). Private institutions, including those religiously affiliated, qualify as "`[e]ligible postsecondary institution[s]'" if they are accredited by a nationally recognized accrediting body. See Wash. Admin. Code § 250-80-020(13). A "degree in theology" is not defined in the statute, but, as both parties concede, the statute simply codifies the State's constitutional prohibition on providing funds to students to pursue degrees that are "devotional in nature or designed to induce religious faith." Brief for Petitioners 6; Brief for Respondent 8; see also Wash. Const., Art. I, § 11. 717 A student who applies for the scholarship and meets the academic and income requirements is notified that he is eligible for the scholarship if he meets the enrollment requirements. E. g., App. 95. Once the student enrolls at an eligible institution, the institution must certify that the student is enrolled at least half time and that the student is not pursuing a degree in devotional theology. The institution, rather than the State, determines whether the student's major is devotional. Id., at 126, 131. If the student meets the enrollment requirements, the scholarship funds are sent to the institution for distribution to the student to pay for tuition or other educational expenses. See Wash. Admin. Code § 250-80-060. Respondent, Joshua Davey, was awarded a Promise Scholarship, and chose to attend Northwest College. Northwest is a private, Christian college affiliated with the Assemblies of God denomination, and is an eligible institution under the Promise Scholarship Program. Davey had "planned for many years to attend a Bible college and to prepare [himself] through that college training for a lifetime of ministry, specifically as a church pastor." App. 40. To that end, when he enrolled in Northwest College, he decided to pursue a double major in pastoral ministries and business management/administration. Id., at 43. There is no dispute that the pastoral ministries degree is devotional and therefore excluded under the Promise Scholarship Program. At the beginning of the 1999-2000 academic year, Davey met with Northwest's director of financial aid. He learned for the first time at this meeting that he could not use his scholarship to pursue a devotional theology degree. He was informed that to receive the funds appropriated for his use, he must certify in writing that he was not pursuing such a degree at Northwest.[1] He refused to sign the form and did not receive any scholarship funds. 718 Davey then brought an action under Rev. Stat. § 1979, 42 U.S. C. § 1983, against various state officials (hereinafter State) in the District Court for the Western District of Washington to enjoin the State from refusing to award the scholarship solely because a student is pursuing a devotional theology degree, and for damages. He argued the denial of his scholarship based on his decision to pursue a theology degree violated, inter alia, the Free Exercise, Establishment, and Free Speech Clauses of the First Amendment, as incorporated by the Fourteenth Amendment, and the Equal Protection Clause of the Fourteenth Amendment. After the District Court denied Davey's request for a preliminary injunction, the parties filed cross-motions for summary judgment. The District Court rejected Davey's constitutional claims and granted summary judgment in favor of the State. A divided panel of the United States Court of Appeals for the Ninth Circuit reversed. 299 F.3d 748 (2002). The court concluded that the State had singled out religion for unfavorable treatment and thus under our decision in Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 (1993), the State's exclusion of theology majors must be narrowly tailored to achieve a compelling state interest. 299 F.3d, at 757-758. Finding that the State's own antiestablishment concerns were not compelling, the court declared Washington's Promise Scholarship Program unconstitutional. Id., at 760. We granted certiorari, 538 U.S. 1031 (2003), and now reverse. The Religion Clauses of the First Amendment provide: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." These two Clauses, the Establishment Clause and the Free Exercise Clause, are frequently in tension. See Norwood v. Harrison, 413 U.S. 455, 469 (1973) (citing Tilton v. Richardson, 403 U.S. 672, 677 (1971)). Yet we have long said that "there is room for play in the joints" between them. Walz v. Tax Comm'n of City of New York, 397 U.S. 664, 669 (1970). In 719 other words, there are some state actions permitted by the Establishment Clause but not required by the Free Exercise Clause. This case involves that "play in the joints" described above. Under our Establishment Clause precedent, the link between government funds and religious training is broken by the independent and private choice of recipients. See Zelman v. Simmons-Harris, 536 U.S. 639, 652 (2002); Zobrest v. Catalina Foothills School Dist., 509 U.S. 1, 13-14 (1993); Witters v. Washington Dept. of Servs. for Blind, 474 U.S. 481, 487 (1986); Mueller v. Allen, 463 U.S. 388, 399-400 (1983). As such, there is no doubt that the State could, consistent with the Federal Constitution, permit Promise Scholars to pursue a degree in devotional theology, see Witters, supra, at 489, and the State does not contend otherwise. The question before us, however, is whether Washington, pursuant to its own constitution,[2] which has been authoritatively interpreted as prohibiting even indirectly funding religious instruction that will prepare students for the ministry, see Witters v. State Comm'n for the Blind, 112 Wash. 2d 363, 369-370, 771 P.2d 1119, 1122 (1989) (en banc); cf. Witters v. State Comm'n for the Blind, 102 Wash. 2d 624, 629, 689 P.2d 53, 56 (1984) (en banc) ("It is not the role of the State to pay for the religious education of future ministers"), rev'd, 474 U.S. 481 (1986), can deny them such funding without violating the Free Exercise Clause. 720 Davey urges us to answer that question in the negative. He contends that under the rule we enunciated in Church of Lukumi Babalu Aye, Inc. v. Hialeah, supra, the program is presumptively unconstitutional because it is not facially neutral with respect to religion.[3] We reject his claim of presumptive unconstitutionality, however; to do otherwise would extend the Lukumi line of cases well beyond not only their facts but their reasoning. In Lukumi, the city of Hialeah made it a crime to engage in certain kinds of animal slaughter. We found that the law sought to suppress ritualistic animal sacrifices of the Santeria religion. 508 U.S., at 535. In the present case, the State's disfavor of religion (if it can be called that) is of a far milder kind. It imposes neither criminal nor civil sanctions on any type of religious service or rite. It does not deny to ministers the right to participate in the political affairs of the community. See McDaniel v. Paty, 435 U.S. 618 (1978). And it does not require students to choose between their religious beliefs and 721 receiving a government benefit.[4] See ibid.; Hobbie v. Unemployment Appeals Comm'n of Fla., 480 U.S. 136 (1987); Thomas v. Review Bd. of Indiana Employment Security Div., 450 U.S. 707 (1981); Sherbert v. Verner, 374 U.S. 398 (1963). The State has merely chosen not to fund a distinct category of instruction. JUSTICE SCALIA argues, however, that generally available benefits are part of the "baseline against which burdens on religion are measured." Post, at 726 (dissenting opinion). Because the Promise Scholarship Program funds training for all secular professions, JUSTICE SCALIA contends the State must also fund training for religious professions. See post, at 726-727. But training for religious professions and training for secular professions are not fungible. Training someone to lead a congregation is an essentially religious endeavor. Indeed, majoring in devotional theology is akin to a religious calling as well as an academic pursuit. See Calvary Bible Presbyterian Church v. Board of Regents, 72 Wash. 2d 912, 919, 436 P.2d 189, 193 (1967) (en banc) (holding public funds may not be expended for "that category of instruction that resembles worship and manifests a devotion to religion and religious principles in thought, feeling, belief, and conduct"); App. 40 (Davey stating his "religious beliefs [were] the only reason for [him] to seek a college degree"). And the subject of religion is one in which both the United States and state constitutions embody distinct views in favor of free exercise, but opposed to establishment that find no counterpart with respect to other callings or professions. That a State would deal differently with religious education for the ministry than with education for other callings is a product of these views, not evidence of hostility toward religion. 722 Even though the differently worded Washington Constitution draws a more stringent line than that drawn by the United States Constitution, the interest it seeks to further is scarcely novel. In fact, we can think of few areas in which a State's antiestablishment interests come more into play.[5] Since the founding of our country, there have been popular uprisings against procuring taxpayer funds to support church leaders, which was one of the hallmarks of an "established" religion.[6] See R. Butts, The American Tradition in Religion and Education 15-17, 19-20, 26-37 (1950); F. Lambert, The Founding Fathers and the Place of Religion in America 188 (2003) ("In defending their religious liberty against overreaching clergy, Americans in all regions found that Radical Whig ideas best framed their argument that state-supported clergy undermined liberty of conscience and should be opposed"); see also J. Madison, Memorial and Remonstrance Against Religious Assessments, reprinted in Everson v. Board of Ed. of Ewing, 330 U.S. 1, 65, 68 (1947) 723 (appendix to dissent of Rutledge, J.) (noting the dangers to civil liberties from supporting clergy with public funds). Most States that sought to avoid an establishment of religion around the time of the founding placed in their constitutions formal prohibitions against using tax funds to support the ministry. E. g., Ga. Const., Art. IV, § 5 (1789), reprinted in 2 Federal and State Constitutions, Colonial Charters, and Other Organic Laws 789 (F. Thorpe ed. 1909) (reprinted 1993) ("All persons shall have the free exercise of religion, without being obliged to contribute to the support of any religious profession but their own"); Pa. Const., Art. II (1776), in 5 id., at 3082 ("[N]o man ought or of right can be compelled to attend any religious worship, or erect or support any place of worship, or maintain any ministry, contrary to, or against, his own free will and consent"); N. J. Const., Art. XVIII (1776), in id., at 2597 (similar); Del. Const., Art. I, § 1 (1792), in 1 id., at 568 (similar); Ky. Const., Art. XII, § 3 (1792), in 3 id., at 1274 (similar); Vt. Const., Ch. I, Art. 3 (1793), in 6 id., at 3762 (similar); Tenn. Const., Art. XI, § 3 (1796), in id., at 3422 (similar); Ohio Const., Art. VIII, § 3 (1802), in 5 id., at 2910 (similar). The plain text of these constitutional provisions prohibited any tax dollars from supporting the clergy. We have found nothing to indicate, as JUSTICE SCALIA contends, post, at 728, n. 1, that these provisions would not have applied so long as the State equally supported other professions or if the amount at stake was de minimis. That early state constitutions saw no problem in explicitly excluding only the ministry from receiving state dollars reinforces our conclusion that religious instruction is of a different ilk.[7] 724 Far from evincing the hostility toward religion which was manifest in Lukumi, we believe that the entirety of the Promise Scholarship Program goes a long way toward including religion in its benefits.[8] The program permits students to attend pervasively religious schools, so long as they are accredited. As Northwest advertises, its "concept of education is distinctly Christian in the evangelical sense." App. 168. It prepares all of its students, "through instruction, through modeling, [and] through [its] classes, to use . . . the Bible as their guide, as the truth," no matter their chosen 725 profession. Id., at 169. And under the Promise Scholarship Program's current guidelines, students are still eligible to take devotional theology courses.[9] Davey notes all students at Northwest are required to take at least four devotional courses, "Exploring the Bible," "Principles of Spiritual Development," "Evangelism in the Christian Life," and "Christian Doctrine," Brief for Respondent 11, n. 5; see also App. 151, and some students may have additional religious requirements as part of their majors. Brief for Respondent 11, n. 5; see also App. 150-151. In short, we find neither in the history or text of Article I, § 11, of the Washington Constitution, nor in the operation of the Promise Scholarship Program, anything that suggests animus toward religion.[10] Given the historic and substantial state interest at issue, we therefore cannot conclude that the denial of funding for vocational religious instruction alone is inherently constitutionally suspect. Without a presumption of unconstitutionality, Davey's claim must fail. The State's interest in not funding the pursuit of devotional degrees is substantial and the exclusion of such funding places a relatively minor burden on Promise Scholars. If any room exists between the two Religion Clauses, it must be here. We need not venture further into this difficult area in order to uphold the Promise Scholarship Program as currently operated by the State of Washington. The judgment of the Court of Appeals is therefore Reversed.	The State of Washington established the Promise Scholarship Program to assist academically gifted students with postsecondary education expenses. In accordance with the State Constitution, students may not use the scholarship at an institution where they are pursuing a degree in devotional theology. We hold that such an exclusion from an otherwise inclusive aid program does not violate the Free Exercise Clause of the First Amendment. The Washington State Legislature found that "[s]tudents who work hard and successfully complete high school with high academic marks may not have the financial ability to attend college because they cannot obtain financial aid or the financial aid is insufficient." Wash. Rev. Code Ann. 28B.119.005 (West Supp. 2004). In 1999, to assist these high-achieving students, the legislature created the 716 Promise Scholarship Program, which provides a scholarship, renewable for one year, to eligible students for postsecondary education expenses. Students may spend their funds on any education-related expense, including room and board. The scholarships are funded through the State's general fund, and their amount varies each year depending on the annual appropriation, which is evenly prorated among the eligible students. Wash. Admin. Code 250-80-050(2) The scholarship was worth $1,125 for academic year 1999-2000 and $1,542 for 2000-2001. To be eligible for the scholarship, a student must meet academic, income, and enrollment requirements. A student must graduate from a Washington public or private high school and either graduate in the top 15% of his graduating class, or attain on the first attempt a cumulative score of 1,200 or better on the Scholastic Assessment Test I or a score of 27 or better on the American College Test. 250-80-020(12)(a) to (d). The student's family income must be less than 135% of the State's median. 250-80-020(12)(e). Finally, the student must enroll "at least half time in an eligible postsecondary institution in the state of Washington," and may not pursue a degree in theology at that institution while receiving the scholarship. 250-80-020(12)(f) to (g); see also Wash. Rev. Code Ann. 28B.10.814 (West 1997) ("No aid shall be awarded to any student who is pursuing a degree in theology"). Private institutions, including those religiously affiliated, qualify as "`[e]ligible postsecondary institution[s]'" if they are accredited by a nationally recognized accrediting body. See Wash. Admin. Code 250-80-020(13). A "degree in theology" is not defined in the statute, but, as both parties concede, the statute simply codifies the State's constitutional prohibition on providing funds to students to pursue degrees that are "devotional in nature or designed to induce religious faith." Brief for Petitioners 6; Brief for Respondent 8; see also Wash. Const., Art. I, 11. 717 A student who applies for the scholarship and meets the academic and income requirements is notified that he is eligible for the scholarship if he meets the enrollment requirements. E. g., App. 95. Once the student enrolls at an eligible institution, the institution must certify that the student is enrolled at least half time and that the student is not pursuing a degree in devotional theology. The institution, rather than the State, determines whether the student's major is devotional. If the student meets the enrollment requirements, the scholarship funds are sent to the institution for distribution to the student to pay for tuition or other educational expenses. See Wash. Admin. Code 250-80-060. Respondent, Joshua Davey, was awarded a Promise Scholarship, and chose to attend Northwest College. Northwest is a private, Christian college affiliated with the Assemblies of God denomination, and is an eligible institution under the Promise Scholarship Program. Davey had "planned for many years to attend a Bible college and to prepare [himself] through that college training for a lifetime of ministry, specifically as a church pastor." App. 40. To that end, when he enrolled in Northwest College, he decided to pursue a double major in pastoral ministries and business management/administration. There is no dispute that the pastoral ministries degree is devotional and therefore excluded under the Promise Scholarship Program. At the beginning of the 1999-2000 academic year, Davey met with Northwest's director of financial aid. He learned for the first time at this meeting that he could not use his scholarship to pursue a devotional theology degree. He was informed that to receive the funds appropriated for his use, he must certify in writing that he was not pursuing such a degree at Northwest.[1] He refused to sign the form and did not receive any scholarship funds. 718 Davey then brought an action under Rev. Stat. 1979, 42 U.S. C. 1983, against various state officials (hereinafter State) in the District Court for the Western District of Washington to enjoin the State from refusing to award the scholarship solely because a student is pursuing a devotional theology degree, and for damages. He argued the denial of his scholarship based on his decision to pursue a theology degree violated, inter alia, the Free Exercise, Establishment, and Free Speech Clauses of the First Amendment, as incorporated by the Fourteenth Amendment, and the Equal Protection Clause of the Fourteenth Amendment. After the District Court denied Davey's request for a preliminary injunction, the parties filed cross-motions for summary judgment. The District Court rejected Davey's constitutional claims and granted summary judgment in favor of the State. A divided panel of the United States Court of Appeals for the Ninth Circuit reversed. The court concluded that the State had singled out religion for unfavorable treatment and thus under our decision in Church of Lukumi Babalu Aye, the State's exclusion of theology majors must be narrowly tailored to achieve a compelling state -758. Finding that the State's own antiestablishment concerns were not compelling, the court declared Washington's Promise Scholarship Program unconstitutional. We granted certiorari, and now reverse. The Religion Clauses of the First Amendment provide: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." These two Clauses, the Establishment Clause and the Free Exercise Clause, are frequently in tension. See Yet we have long said that "there is room for play in the joints" between them. In 719 other words, there are some state actions permitted by the Establishment Clause but not required by the Free Exercise Clause. This case involves that "play in the joints" described above. Under our Establishment Clause precedent, the link between government funds and religious training is broken by the independent and private choice of recipients. See ; ; ; As such, there is no doubt that the State could, consistent with the Federal Constitution, permit Promise Scholars to pursue a degree in devotional theology, see and the State does not contend otherwise. The question before us, however, is whether Washington, pursuant to its own constitution,[2] which has been authoritatively interpreted as prohibiting even indirectly funding religious instruction that will prepare students for the ministry, see v. State Comm'n for the Blind, ; cf. v. State Comm'n for the Blind, ("It is not the role of the State to pay for the religious education of future ministers"), rev'd, can deny them such funding without violating the Free Exercise Clause. 720 Davey urges us to answer that question in the negative. He contends that under the rule we enunciated in Church of Lukumi Babalu Aye, the program is presumptively unconstitutional because it is not facially neutral with respect to [3] We reject his claim of presumptive unconstitutionality, however; to do otherwise would extend the Lukumi line of cases well beyond not only their facts but their reasoning. In Lukumi, the city of made it a crime to engage in certain kinds of animal slaughter. We found that the law sought to suppress ritualistic animal sacrifices of the Santeria In the present case, the State's disfavor of religion (if it can be called that) is of a far milder kind. It imposes neither criminal nor civil sanctions on any type of religious service or rite. It does not deny to ministers the right to participate in the political affairs of the community. See And it does not require students to choose between their religious beliefs and 721 receiving a government benefit.[4] See ibid.; ; ; The State has merely chosen not to fund a distinct category of instruction. JUSTICE SCALIA argues, however, that generally available benefits are part of the "baseline against which burdens on religion are measured." Post, at 726 (dissenting opinion). Because the Promise Scholarship Program funds training for all secular professions, JUSTICE SCALIA contends the State must also fund training for religious professions. See post, at 726-727. But training for religious professions and training for secular professions are not fungible. Training someone to lead a congregation is an essentially religious endeavor. Indeed, majoring in devotional theology is akin to a religious calling as well as an academic pursuit. See Calvary Bible Presbyterian (holding public funds may not be expended for "that category of instruction that resembles worship and manifests a devotion to religion and religious principles in thought, feeling, belief, and conduct"); App. 40 (Davey stating his "religious beliefs [were] the only reason for [him] to seek a college degree"). And the subject of religion is one in which both the United States and state constitutions embody distinct views in favor of free exercise, but opposed to establishment that find no counterpart with respect to other callings or professions. That a State would deal differently with religious education for the ministry than with education for other callings is a product of these views, not evidence of hostility toward 722 Even though the differently worded Washington Constitution draws a more stringent line than that drawn by the United States Constitution, the interest it seeks to further is scarcely novel. In fact, we can think of few areas in which a State's antiestablishment interests come more into play.[5] Since the founding of our country, there have been popular uprisings against procuring taxpayer funds to support church leaders, which was one of the hallmarks of an "established" [6] See R. Butts, The American Tradition in Religion and Education 15-17, 19-20, 26-37 (1950); F. Lambert, The Founding Fathers and the Place of Religion in America 188 ("In defending their religious liberty against overreaching clergy, Americans in all regions found that Radical Whig ideas best framed their argument that state-supported clergy undermined liberty of conscience and should be opposed"); see also J. Madison, Memorial and Remonstrance Against Religious Assessments, reprinted in 723 (appendix to dissent of Rutledge, J.) (noting the dangers to civil liberties from supporting clergy with public funds). Most States that sought to avoid an establishment of religion around the time of the founding placed in their constitutions formal prohibitions against using tax funds to support the ministry. E. g., Ga. Const., Art. IV, 5 (1789), reprinted in 2 Federal and State Constitutions, Colonial Charters, and Other Organic Laws 789 (F. Thorpe ed. 1909) ("All persons shall have the free exercise of religion, without being obliged to contribute to the support of any religious profession but their own"); Pa. Const., Art. II (1776), in 5 ; N. J. Const., Art. XVIII (1776), in ; Del. Const., Art. I, 1 (1792), in 1 at 8 ; Ky. Const., Art. XII, 3 (1792), in 3 ; Vt. Const., Ch. I, Art. 3 (1793), in 6 ; Tenn. Const., Art. XI, 3 (1796), in ; Ohio Const., Art. VIII, 3 (1802), in 5 The plain text of these constitutional provisions prohibited any tax dollars from supporting the clergy. We have found nothing to indicate, as JUSTICE SCALIA contends, post, at 728, n. 1, that these provisions would not have applied so long as the State equally supported other professions or if the amount at stake was de minimis. That early state constitutions saw no problem in explicitly excluding only the ministry from receiving state dollars reinforces our conclusion that religious instruction is of a different ilk.[7] 724 Far from evincing the hostility toward religion which was manifest in Lukumi, we believe that the entirety of the Promise Scholarship Program goes a long way toward including religion in its benefits.[8] The program permits students to attend pervasively religious schools, so long as they are accredited. As Northwest advertises, its "concept of education is distinctly Christian in the evangelical sense." App. 168. It prepares all of its students, "through instruction, through modeling, [and] through [its] classes, to use the Bible as their guide, as the truth," no matter their chosen 725 profession. And under the Promise Scholarship Program's current guidelines, students are still eligible to take devotional theology courses.[9] Davey notes all students at Northwest are required to take at least four devotional courses, "Exploring the Bible," "Principles of Spiritual Development," "Evangelism in the Christian Life," and "Christian Doctrine," Brief for Respondent 11, n. 5; see also App. 151, and some students may have additional religious requirements as part of their majors. Brief for Respondent 11, n. 5; see also App. 150-151. In short, we find neither in the history or text of Article I, 11, of the Washington Constitution, nor in the operation of the Promise Scholarship Program, anything that suggests animus toward [10] Given the historic and substantial state interest at issue, we therefore cannot conclude that the denial of funding for vocational religious instruction alone is inherently constitutionally suspect. Without a presumption of unconstitutionality, Davey's claim must fail. The State's interest in not funding the pursuit of devotional degrees is substantial and the exclusion of such funding places a relatively minor burden on Promise Scholars. If any room exists between the two Religion Clauses, it must be here. We need not venture further into this difficult area in order to uphold the Promise Scholarship Program as currently operated by the State of Washington. The judgment of the Court of Appeals is therefore Reversed.	1,843
Justice Scalia	dissenting	false	Locke v. Davey	2004-02-25	null	https://www.courtlistener.com/opinion/131166/locke-v-davey/	https://www.courtlistener.com/api/rest/v3/clusters/131166/	2,004	2003-035	2	7	2	In Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 (1993), the majority opinion held that "[a] law burdening religious practice that is not neutral . . . must undergo the most rigorous of scrutiny," id., at 546, and that "the minimum requirement of neutrality is that a law not discriminate on its face," id., at 533. The concurrence of two Justices stated that "[w]hen a law discriminates against religion as such, . . . it automatically will fail strict scrutiny." Id., at 579 (Blackmun, J., joined by O'CONNOR, J., concurring in judgment). And the concurrence of a third Justice endorsed the "noncontroversial principle" that "formal neutrality" is a "necessary conditio[n] for free-exercise constitutionality." Id., at 563 (SOUTER, J., concurring in part and concurring in judgment). These opinions are irreconcilable with today's decision, which sustains a public benefits program that facially discriminates against religion. I We articulated the principle that governs this case more than 50 years ago in Everson v. Board of Ed. of Ewing, 330 U.S. 1 (1947): "New Jersey cannot hamper its citizens in the free exercise of their own religion. Consequently, it cannot exclude individual Catholics, Lutherans, Mohammedans, Baptists, Jews, Methodists, Non-believers, Presbyterians, or the members of any other faith, because of their faith, or lack of it, from receiving the benefits of public welfare legislation." Id., at 16 (emphasis deleted). When the State makes a public benefit generally available, that benefit becomes part of the baseline against which burdens on religion are measured; and when the State withholds 727 that benefit from some individuals solely on the basis of religion, it violates the Free Exercise Clause no less than if it had imposed a special tax. That is precisely what the State of Washington has done here. It has created a generally available public benefit, whose receipt is conditioned only on academic performance, income, and attendance at an accredited school. It has then carved out a solitary course of study for exclusion: theology. Wash. Rev. Code Ann. § 28B.119.010(8) (West Supp. 2004); Wash. Admin. Code § 250-80-020(12)(g) (2003). No field of study but religion is singled out for disfavor in this fashion. Davey is not asking for a special benefit to which others are not entitled. Cf. Lyng v. Northwest Indian Cemetery Protective Assn., 485 U.S. 439, 453 (1988). He seeks only equal treatment the right to direct his scholarship to his chosen course of study, a right every other Promise Scholar enjoys. The Court's reference to historical "popular uprisings against procuring taxpayer funds to support church leaders," ante, at 722, is therefore quite misplaced. That history involved not the inclusion of religious ministers in public benefits programs like the one at issue here, but laws that singled them out for financial aid. For example, the Virginia bill at which Madison's Remonstrance was directed provided: "[F]or the support of Christian teachers . . . [a] sum payable for tax on the property within this Commonwealth, is hereby assessed . . . ." A Bill Establishing a Provision for Teachers of the Christian Religion (1784), reprinted in Everson, supra, at 72. Laws supporting the clergy in other States operated in a similar fashion. See S. Cobb, The Rise of Religious Liberty in America 131, 169, 270, 295, 304, 386 (1902). One can concede the Framers' hostility to funding the clergy specifically, but that says nothing about whether the clergy had to be excluded from benefits the State made available to all. No one would seriously contend, for example, that the Framers 728 would have barred ministers from using public roads on their way to church.[1] The Court does not dispute that the Free Exercise Clause places some constraints on public benefits programs, but finds none here, based on a principle of "`play in the joints.'" Ante, at 719. I use the term "principle" loosely, for that is not so much a legal principle as a refusal to apply any principle when faced with competing constitutional directives. There is nothing anomalous about constitutional commands that abut. A municipality hiring public contractors may not discriminate against blacks or in favor of them; it cannot discriminate a little bit each way and then plead "play in the joints" when haled into court. If the Religion Clauses demand neutrality, we must enforce them, in hard cases as well as easy ones. Even if "play in the joints" were a valid legal principle, surely it would apply only when it was a close call whether complying with one of the Religion Clauses would violate the other. But that is not the case here. It is not just that "the State could, consistent with the Federal Constitution, permit Promise Scholars to pursue a degree in devotional 729 theology." Ante, at 719. The establishment question would not even be close, as is evident from the fact that this Court's decision in Witters v. Washington Dept. of Servs. for Blind, 474 U.S. 481 (1986), was unanimous. Perhaps some formally neutral public benefits programs are so gerrymandered and devoid of plausible secular purpose that they might raise specters of state aid to religion, but an evenhanded Promise Scholarship Program is not among them. In any case, the State already has all the play in the joints it needs. There are any number of ways it could respect both its unusually sensitive concern for the conscience of its taxpayers and the Federal Free Exercise Clause. It could make the scholarships redeemable only at public universities (where it sets the curriculum), or only for select courses of study. Either option would replace a program that facially discriminates against religion with one that just happens not to subsidize it. The State could also simply abandon the scholarship program altogether. If that seems a dear price to pay for freedom of conscience, it is only because the State has defined that freedom so broadly that it would be offended by a program with such an incidental, indirect religious effect. What is the nature of the State's asserted interest here? It cannot be protecting the pocketbooks of its citizens; given the tiny fraction of Promise Scholars who would pursue theology degrees, the amount of any citizen's tax bill at stake is de minimis. It cannot be preventing mistaken appearance of endorsement; where a State merely declines to penalize students for selecting a religious major, "[n]o reasonable observer is likely to draw . . . an inference that the State itself is endorsing a religious practice or belief." Id., at 493 (O'CONNOR, J., concurring in part and concurring in judgment). Nor can Washington's exclusion be defended as a means of assuring that the State will neither favor nor disfavor Davey in his religious calling. Davey will throughout his life contribute to the public fisc through sales taxes on 730 personal purchases, property taxes on his home, and so on; and nothing in the Court's opinion turns on whether Davey winds up a net winner or loser in the State's tax-and-spend scheme. No, the interest to which the Court defers is not fear of a conceivable Establishment Clause violation, budget constraints, avoidance of endorsement, or substantive neutrality none of these. It is a pure philosophical preference: the State's opinion that it would violate taxpayers' freedom of conscience not to discriminate against candidates for the ministry. This sort of protection of "freedom of conscience" has no logical limit and can justify the singling out of religion for exclusion from public programs in virtually any context. The Court never says whether it deems this interest compelling (the opinion is devoid of any mention of standard of review) but, self-evidently, it is not.[2] 731 II The Court makes no serious attempt to defend the program's neutrality, and instead identifies two features thought to render its discrimination less offensive. The first is the lightness of Davey's burden. The Court offers no authority for approving facial discrimination against religion simply because its material consequences are not severe. I might understand such a test if we were still in the business of reviewing facially neutral laws that merely happen to burden some individual's religious exercise, but we are not. See Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872, 885 (1990). Discrimination on the face of a statute is something else. The indignity of being singled out for special burdens on the basis of one's religious calling is so profound that the concrete harm produced can never be dismissed as insubstantial. The Court has not required proof of "substantial" concrete harm with other forms of discrimination, see, e. g., Brown v. Board of Education, 347 U.S. 483, 493-495 (1954); cf. Craig v. Boren, 429 U.S. 190 (1976), and it should not do so here. Even if there were some threshold quantum-of-harm requirement, surely Davey has satisfied it. The First Amendment, after all, guarantees free exercise of religion, and when the State exacts a financial penalty of almost $3,000 for religious exercise whether by tax or by forfeiture of an otherwise available benefit religious practice is anything but free. The Court's only response is that "Promise Scholars may still use their scholarship to pursue a secular degree at a different institution from where they are studying devotional theology." Ante, at 721, n. 4. But part of what makes a Promise Scholarship attractive is that the recipient can apply it to his preferred course of study at his preferred accredited institution. That is part of the "benefit" the State confers. The Court distinguishes our precedents only by swapping the benefit to which Davey was actually entitled (a scholarship for his chosen course of study) with another, less valuable one (a scholarship for any course of study but his chosen 732 one). On such reasoning, any facially discriminatory benefits program can be redeemed simply by redefining what it guarantees. The other reason the Court thinks this particular facial discrimination less offensive is that the scholarship program was not motivated by animus toward religion. The Court does not explain why the legislature's motive matters, and I fail to see why it should. If a State deprives a citizen of trial by jury or passes an ex post facto law, we do not pause to investigate whether it was actually trying to accomplish the evil the Constitution prohibits. It is sufficient that the citizen's rights have been infringed. "[It does not] matter that a legislature consists entirely of the purehearted, if the law it enacts in fact singles out a religious practice for special burdens." Lukumi, 508 U. S., at 559 (SCALIA, J., concurring in part and concurring in judgment). The Court has not approached other forms of discrimination this way. When we declared racial segregation unconstitutional, we did not ask whether the State had originally adopted the regime, not out of "animus" against blacks, but because of a well-meaning but misguided belief that the races would be better off apart. It was sufficient to note the current effect of segregation on racial minorities. See Brown, supra, at 493-495. Similarly, the Court does not excuse statutes that facially discriminate against women just because they are the vestigial product of a well-intentioned view of women's appropriate social role. See, e. g., United States v. Virginia, 518 U.S. 515, 549-551 (1996); Adkins v. Children's Hospital of D. C., 261 U.S. 525, 552-553 (1923). We do sometimes look to legislative intent to smoke out more subtle instances of discrimination, but we do so as a supplement to the core guarantee of facially equal treatment, not as a replacement for it. See Hunt v. Cromartie, 526 U.S. 541, 546 (1999). There is no need to rely on analogies, however, because we have rejected the Court's methodology in this very context. 733 In McDaniel v. Paty, 435 U.S. 618 (1978), we considered a Tennessee statute that disqualified clergy from participation in the state constitutional convention. That statute, like the one here, was based upon a state constitutional provision a clause in the 1796 Tennessee Constitution that disqualified clergy from sitting in the legislature. Id., at 621, and n. 1 (plurality opinion). The State defended the statute as an attempt to be faithful to its constitutional separation of church and state, and we accepted that claimed benevolent purpose as bona fide. See id., at 628. Nonetheless, because it did not justify facial discrimination against religion, we invalidated the restriction. Id., at 629.[3] It may be that Washington's original purpose in excluding the clergy from public benefits was benign, and the same might be true of its purpose in maintaining the exclusion today. But those singled out for disfavor can be forgiven for suspecting more invidious forces at work. Let there be no doubt: This case is about discrimination against a religious minority. Most citizens of this country identify themselves as professing some religious belief, but the State's policy poses no obstacle to practitioners of only a tepid, civic version of faith. Those the statutory exclusion actually affects those whose belief in their religion is so strong that they dedicate their study and their lives to its ministry are a far narrower set. One need not delve too far into modern popular culture to perceive a trendy disdain for deep religious conviction. In an era when the Court is so quick to come to the aid of other disfavored groups, see, e. g., Romer v. Evans, 517 U.S. 620, 635 (1996), its indifference in this case, which involves a form of discrimination to which the Constitution actually speaks, is exceptional. 734 * * * Today's holding is limited to training the clergy, but its logic is readily extendible, and there are plenty of directions to go. What next? Will we deny priests and nuns their prescription-drug benefits on the ground that taxpayers' freedom of conscience forbids medicating the clergy at public expense? This may seem fanciful, but recall that France has proposed banning religious attire from schools, invoking interests in secularism no less benign than those the Court embraces today. See Sciolino, Chirac Backs Law to Keep Signs of Faith Out of School, N. Y. Times, Dec. 18, 2003, p. A17, col. 1. When the public's freedom of conscience is invoked to justify denial of equal treatment, benevolent motives shade into indifference and ultimately into repression. Having accepted the justification in this case, the Court is less well equipped to fend it off in the future. I respectfully dissent.	In Church of Lukumi Babalu Aye, the majority opinion held that "[a] law burdening religious practice that is not neutral must undergo the most rigorous of scrutiny," and that "the minimum requirement of neutrality is that a law not discriminate on its face," The concurrence of two Justices stated that "[w]hen a law discriminates against religion as such, it automatically will fail strict scrutiny." And the concurrence of a third Justice endorsed the "noncontroversial principle" that "formal neutrality" is a "necessary conditio[n] for free-exercise constitutionality." These opinions are irreconcilable with today's decision, which sustains a public benefits program that facially discriminates against religion. I We articulated the principle that governs this case more than 50 years ago in : "New Jersey cannot hamper its citizens in the free exercise of their own religion. Consequently, it cannot exclude individual Catholics, Lutherans, Mohammedans, Baptists, Jews, Methodists, Non-believers, Presbyterians, or the members of any other faith, because of their faith, or lack of it, from receiving the benefits of public welfare legislation." When the State makes a public benefit generally available, that benefit becomes part of the baseline against which burdens on religion are measured; and when the State withholds 727 that benefit from some individuals solely on the basis of religion, it violates the Free Exercise Clause no less than if it had imposed a special tax. That is precisely what the State of Washington has done here. It has created a generally available public benefit, whose receipt is conditioned only on academic performance, income, and attendance at an accredited school. It has then carved out a solitary course of study for exclusion: theology. Wash. Rev. Code Ann. 28B.119.010(8) (West Supp. 2004); Wash. Admin. Code 250-80-020(12)(g) (2003). No field of study but religion is singled out for disfavor in this fashion. Davey is not asking for a special benefit to which others are not entitled. Cf. He seeks only equal treatment the right to direct his scholarship to his chosen course of study, a right every other Promise Scholar enjoys. The Court's reference to historical "popular uprisings against procuring taxpayer funds to support church leaders," ante, 2, is therefore quite misplaced. That history involved not the inclusion of religious ministers in public benefits programs like the one at issue here, but laws that singled them out for financial aid. For example, the Virginia bill at which Madison's Remonstrance was directed provided: "[F]or the support of Christian teachers [a] sum payable for tax on the property within this Commonwealth, is hereby assessed" A Bill Establishing a Provision for Teachers of the Christian Religion (1784), reprinted in Everson, Laws supporting the clergy in other States operated in a similar fashion. See S. Cobb, The Rise of Religious Liberty in America 131, 169, 270, 295, 304, 386 (1902). One can concede the Framers' hostility to funding the clergy specifically, but that says nothing about whether the clergy had to be excluded from benefits the State made available to all. No one would seriously contend, for example, that the Framers 728 would have barred ministers from using public roads on their way to church.[1] The Court does not dispute that the Free Exercise Clause places some constraints on public benefits programs, but finds none here, based on a principle of "`play in the joints.'" Ante, at 719. I use the term "principle" loosely, for that is not so much a legal principle as a refusal to apply any principle when faced with competing constitutional directives. There is nothing anomalous about constitutional commands that abut. A municipality hiring public contractors may not discriminate against blacks or in favor of them; it cannot discriminate a little bit each way and then plead "play in the joints" when haled into court. If the Religion Clauses demand neutrality, we must enforce them, in hard cases as well as easy ones. Even if "play in the joints" were a valid legal principle, surely it would apply only when it was a close call whether complying with one of the Religion Clauses would violate the other. But that is not the case here. It is not just that "the State could, consistent with the Federal Constitution, permit Promise Scholars to pursue a degree in devotional 729 theology." Ante, at 719. The establishment question would not even be close, as is evident from the fact that this Court's decision in was unanimous. Perhaps some formally neutral public benefits programs are so gerrymandered and devoid of plausible secular purpose that they might raise specters of state aid to religion, but an evenhanded Promise Scholarship Program is not among them. In any case, the State already has all the play in the joints it needs. There are any number of ways it could respect both its unusually sensitive concern for the conscience of its taxpayers and the Federal Free Exercise Clause. It could make the scholarships redeemable only at public universities (where it sets the curriculum), or only for select courses of study. Either option would replace a program that facially discriminates against religion with one that just happens not to subsidize it. The State could also simply abandon the scholarship program altogether. If that seems a dear price to pay for freedom of conscience, it is only because the State has defined that freedom so broadly that it would be offended by a program with such an incidental, indirect religious effect. What is the nature of the State's asserted interest here? It cannot be protecting the pocketbooks of its citizens; given the tiny fraction of Promise Scholars who would pursue theology degrees, the amount of any citizen's tax bill at stake is de minimis. It cannot be preventing mistaken appearance of endorsement; where a State merely declines to penalize students for selecting a religious major, "[n]o reasonable observer is likely to draw an inference that the State itself is endorsing a religious practice or belief." Nor can Washington's exclusion be defended as a means of assuring that the State will neither favor nor disfavor Davey in his religious calling. Davey will throughout his life contribute to the public fisc through sales taxes on 730 personal purchases, property taxes on his home, and so on; and nothing in the Court's opinion turns on whether Davey winds up a net winner or loser in the State's tax-and-spend scheme. No, the interest to which the Court defers is not fear of a conceivable Establishment Clause violation, budget constraints, avoidance of endorsement, or substantive neutrality none of these. It is a pure philosophical preference: the State's opinion that it would violate taxpayers' freedom of conscience not to discriminate against candidates for the ministry. This sort of protection of "freedom of conscience" has no logical limit and can justify the singling out of religion for exclusion from public programs in virtually any context. The Court never says whether it deems this interest compelling (the opinion is devoid of any mention of standard of review) but, self-evidently, it is not.[2] 731 II The Court makes no serious attempt to defend the program's neutrality, and instead identifies two features thought to render its discrimination less offensive. The first is the lightness of Davey's burden. The Court offers no authority for approving facial discrimination against religion simply because its material consequences are not severe. I might understand such a test if we were still in the business of reviewing facially neutral laws that merely happen to burden some individual's religious exercise, but we are not. See Employment Div., Dept. of Human Resources of Discrimination on the face of a statute is something else. The indignity of being singled out for special burdens on the basis of one's religious calling is so profound that the concrete harm produced can never be dismissed as insubstantial. The Court has not required proof of "substantial" concrete harm with other forms of discrimination, see, e. g., ; cf. and it should not do so here. Even if there were some threshold quantum-of-harm requirement, surely Davey has satisfied it. The First Amendment, after all, guarantees free exercise of religion, and when the State exacts a financial penalty of almost $3,000 for religious exercise whether by tax or by forfeiture of an otherwise available benefit religious practice is anything but free. The Court's only response is that "Promise Scholars may still use their scholarship to pursue a secular degree at a different institution from where they are studying devotional theology." Ante, 1, n. 4. But part of what makes a Promise Scholarship attractive is that the recipient can apply it to his preferred course of study at his preferred accredited institution. That is part of the "benefit" the State confers. The Court distinguishes our precedents only by swapping the benefit to which Davey was actually entitled (a scholarship for his chosen course of study) with another, less valuable one (a scholarship for any course of study but his chosen 732 one). On such reasoning, any facially discriminatory benefits program can be redeemed simply by redefining what it guarantees. The other reason the Court thinks this particular facial discrimination less offensive is that the scholarship program was not motivated by animus toward religion. The Court does not explain why the legislature's motive matters, and I fail to see why it should. If a State deprives a citizen of trial by jury or passes an ex post facto law, we do not pause to investigate whether it was actually trying to accomplish the evil the Constitution prohibits. It is sufficient that the citizen's rights have been infringed. "[It does not] matter that a legislature consists entirely of the purehearted, if the law it enacts in fact singles out a religious practice for special burdens." Lukumi, The Court has not approached other forms of discrimination this way. When we declared racial segregation unconstitutional, we did not ask whether the State had originally adopted the regime, not out of "animus" against blacks, but because of a well-meaning but misguided belief that the races would be better off apart. It was sufficient to note the current effect of segregation on racial minorities. See -495. Similarly, the Court does not excuse statutes that facially discriminate against women just because they are the vestigial product of a well-intentioned view of women's appropriate social role. See, e. g., United ; We do sometimes look to legislative intent to smoke out more subtle instances of discrimination, but we do so as a supplement to the core guarantee of facially equal treatment, not as a replacement for it. See There is no need to rely on analogies, however, because we have rejected the Court's methodology in this very context. 733 In we considered a Tennessee statute that disqualified clergy from participation in the state constitutional convention. That statute, like the one here, was based upon a state constitutional provision a clause in the 1796 Tennessee Constitution that disqualified clergy from sitting in the legislature. and n. 1 (plurality opinion). The State defended the statute as an attempt to be faithful to its constitutional separation of church and state, and we accepted that claimed benevolent purpose as bona fide. See Nonetheless, because it did not justify facial discrimination against religion, we invalidated the restriction.[3] It may be that Washington's original purpose in excluding the clergy from public benefits was benign, and the same might be true of its purpose in maintaining the exclusion today. But those singled out for disfavor can be forgiven for suspecting more invidious forces at work. Let there be no doubt: This case is about discrimination against a religious minority. Most citizens of this country identify themselves as professing some religious belief, but the State's policy poses no obstacle to practitioners of only a tepid, civic version of faith. Those the statutory exclusion actually affects those whose belief in their religion is so strong that they dedicate their study and their lives to its ministry are a far narrower set. One need not delve too far into modern popular culture to perceive a trendy disdain for deep religious conviction. In an era when the Court is so quick to come to the aid of other disfavored groups, see, e. g., its indifference in this case, which involves a form of discrimination to which the Constitution actually speaks, is exceptional. 734 * * * Today's holding is limited to training the clergy, but its logic is readily extendible, and there are plenty of directions to go. What next? Will we deny priests and nuns their prescription-drug benefits on the ground that taxpayers' freedom of conscience forbids medicating the clergy at public expense? This may seem fanciful, but recall that France has proposed banning religious attire from schools, invoking interests in secularism no less benign than those the Court embraces today. See Sciolino, Chirac Backs Law to Keep Signs of Faith Out of School, N. Y. Times, Dec. 18, 2003, p. A17, col. 1. When the public's freedom of conscience is invoked to justify denial of equal treatment, benevolent motives shade into indifference and ultimately into repression. Having accepted the justification in this case, the Court is less well equipped to fend it off in the future. I respectfully dissent.	1,844
Justice Thomas	second_dissenting	false	Locke v. Davey	2004-02-25	null	https://www.courtlistener.com/opinion/131166/locke-v-davey/	https://www.courtlistener.com/api/rest/v3/clusters/131166/	2,004	2003-035	2	7	2	Because the parties agree that a "degree in theology" means a degree that is "devotional in nature or designed to induce religious faith," Brief for Petitioners 6; Brief for Respondent 8, I assume that this is so for purposes of deciding this case. With this understanding, I join JUSTICE SCALIA'S dissenting opinion. I write separately to note that, in my view, the study of theology does not necessarily implicate religious devotion or faith. The contested statute denies Promise Scholarships to students who pursue "a degree in theology." See Wash. Admin. Code § 250-80-020(12)(g) (2003) (defining an "`[e]ligible student,'" in part, as one who "[i]s not pursuing a degree in theology"); Wash. Rev. Code Ann. § 28B.10.814 (West 1997) ("No aid shall be awarded to any student who is pursuing a degree in theology"). But the statute itself does not define "theology." And the usual definition of the term "theology" is not limited to devotional studies. "Theology" is defined as "[t]he study of the nature *735 of God and religious truth" and the "rational inquiry into religious questions." American Heritage Dictionary 1794 (4th ed. 2000). See also Webster's Ninth New Collegiate Dictionary 1223 (1991) ("the study of religious faith, practice, and experience" and "the study of God and his relation to the world"). These definitions include the study of theology from a secular perspective as well as from a religious one. Assuming that the State denies Promise Scholarships only to students who pursue a degree in devotional theology, I believe that JUSTICE SCALIA'S application of our precedents is correct. Because neither party contests the validity of these precedents, I join JUSTICE SCALIA'S dissent.	Because the parties agree that a "degree in theology" means a degree that is "devotional in nature or designed to induce religious faith," Brief for Petitioners 6; Brief for Respondent 8, I assume that this is so for purposes of deciding this case. With this understanding, I join JUSTICE SCALIA'S dissenting opinion. I write separately to note that, in my view, the study of theology does not necessarily implicate religious devotion or faith. The contested statute denies Promise Scholarships to students who pursue "a degree in theology." See (12)(g) (2003) ; Wash. Rev. Code Ann. 28B.10.814 (West 1997) ("No aid shall be awarded to any student who is pursuing a degree in theology"). But the statute itself does not define "theology." And the usual definition of the term "theology" is not limited to devotional studies. "Theology" is defined as "[t]he study of the nature *735 of God and religious truth" and the "rational inquiry into religious questions." American Heritage Dictionary 1794 (4th ed. 2000). See also Webster's Ninth New Collegiate Dictionary 1223 (1991) ("the study of religious faith, practice, and experience" and "the study of God and his relation to the world"). These definitions include the study of theology from a secular perspective as well as from a religious one. Assuming that the State denies Promise Scholarships only to students who pursue a degree in devotional theology, I believe that JUSTICE SCALIA'S application of our precedents is correct. Because neither party contests the validity of these precedents, I join JUSTICE SCALIA'S dissent.	1,845
Justice Scalia	majority	false	Engine Mfrs. Assn. v. South Coast Air Quality Management Dist.	2004-04-28	null	https://www.courtlistener.com/opinion/134734/engine-mfrs-assn-v-south-coast-air-quality-management-dist/	https://www.courtlistener.com/api/rest/v3/clusters/134734/	2,004	2003-050	1	8	1	Respondent South Coast Air Quality Management District (District) is a political subdivision of California responsible for air pollution control in the Los Angeles metropolitan area and parts of surrounding counties that make up the South Coast Air Basin. It enacted six Fleet Rules that generally prohibit the purchase or lease by various public and private 249 fleet operators of vehicles that do not comply with stringent emission requirements. The question in this case is whether these local Fleet Rules escape pre-emption under § 209(a) of the Clean Air Act (CAA), 81 Stat. 502, as renumbered and amended, 42 U.S. C. § 7543(a), because they address the purchase of vehicles, rather than their manufacture or sale. I The District is responsible under state law for developing and implementing a "comprehensive basinwide air quality management plan" to reduce emission levels and thereby achieve and maintain "state and federal ambient air quality standards." Cal. Health & Safety Code Ann. § 40402(e) (West 1996). Between June and October 2000, the District adopted six Fleet Rules. The Rules govern operators of fleets of street sweepers (Rule 1186.1), of passenger cars, light-duty trucks, and medium-duty vehicles (Rule 1191), of public transit vehicles and urban buses (Rule 1192), of solid waste collection vehicles (Rule 1193), of airport passenger transportation vehicles, including shuttles and taxicabs picking up airline passengers (Rule 1194), and of heavy-duty on-road vehicles (Rule 1196). All six Rules apply to public operators; three apply to private operators as well (Rules 1186.1, 1193, and 1194). The Fleet Rules contain detailed prescriptions regarding the types of vehicles that fleet operators must purchase or lease when adding or replacing fleet vehicles. Four of the Rules (1186.1, 1192, 1193, and 1196) require the purchase or lease of "alternative-fuel vehicles,"[1] and the other two 250 (1191 and 1194) require the purchase or lease of either "alternative-fueled vehicles"[2] or vehicles that meet certain emission specifications established by the California Air Resources Board (CARB).[3] CARB is a statewide regulatory body that California law designates as "the air pollution control agency for all purposes set forth in federal law." Cal. 251 Health & Safety Code Ann. § 39602 (West 1996). The Rules require operators to keep records of their purchases and leases and provide access to them upon request. See, e. g., Rule 1186.1(g)(1), App. 23. Violations expose fleet operators to fines and other sanctions. See Cal. Health & Safety Code Ann. §§ 42400-42410, 40447.5 (West 1996 and Supp. 2004). In August 2000, petitioner Engine Manufacturers Association sued the District and its officials, also respondents, claiming that the Fleet Rules are pre-empted by § 209 of the CAA, which prohibits the adoption or attempted enforcement of any state or local "standard relating to the control of emissions from new motor vehicles or new motor vehicle engines." 42 U.S. C. § 7543(a).[4] The District Court granted summary judgment to respondents, upholding the Rules in their entirety. It held that the Rules were not "standard[s]" under § 209(a) because they regulate only the purchase of vehicles that are otherwise certified for sale in California. The District Court recognized that the Courts of Appeals for the First and Second Circuits had previously held that CAA § 209(a) pre-empted state laws mandating that a specified percentage of a manufacturer's in-state sales be of "zero-emission vehicles." See Association of Int'l Automobile Mfrs., Inc. v. Commissioner, Mass. Dept. of Environmental Protection, 208 F.3d 1, 6-7 (CA1 2000); American Automobile Mfrs. Assn. v. Cahill, 152 F.3d 196, 200 (CA2 1998).[5] It did not express disagreement with these rulings, but distinguished them as involving a restriction on vehicle sales rather than vehicle purchases: "Where a state 252 regulation does not compel manufacturers to meet a new emissions limit, but rather affects the purchase of vehicles, as the Fleet Rules do, that regulation is not a standard." 158 F. Supp. 2d 1107, 1118 (CD Cal. 2001). The Ninth Circuit affirmed on the reasoning of the District Court. 309 F.3d 550 (2002). We granted certiorari. 539 U.S. 914 (2003). II Section 209(a) of the CAA states: "No State or any political subdivision thereof shall adopt or attempt to enforce any standard relating to the control of emissions from new motor vehicles or new motor vehicle engines subject to this part. No State shall require certification, inspection, or any other approval relating to the control of emissions . . . as condition precedent to the initial retail sale, titling (if any), or registration of such motor vehicle, motor vehicle engine, or equipment." 42 U.S. C. § 7543(a). The District Court's determination that this express pre-emption provision did not invalidate the Fleet Rules hinged on its interpretation of the word "standard" to include only regulations that compel manufacturers to meet specified emission limits. This interpretation of "standard" in turn caused the court to draw a distinction between purchase restrictions (not pre-empted) and sale restrictions (pre-empted). Neither the manufacturer-specific interpretation of "standard" nor the resulting distinction between purchase and sale restrictions finds support in the text of § 209(a) or the structure of the CAA. "Statutory construction must begin with the language employed by Congress and the assumption that the ordinary meaning of that language accurately expresses the legislative purpose." Park 'N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U.S. 189, 194 (1985). Today, as in 1967 when § 209(a) became law, "standard" is defined as that which "is established 253 by authority, custom, or general consent, as a model or example; criterion; test." Webster's Second New International Dictionary 2455 (1945). The criteria referred to in § 209(a) relate to the emission characteristics of a vehicle or engine. To meet them the vehicle or engine must not emit more than a certain amount of a given pollutant, must be equipped with a certain type of pollution-control device, or must have some other design feature related to the control of emissions. This interpretation is consistent with the use of "standard" throughout Title II of the CAA (which governs emissions from moving sources) to denote requirements such as numerical emission levels with which vehicles or engines must comply, e. g., 42 U.S. C. § 7521(a)(3)(B)(ii), or emission-control technology with which they must be equipped, e. g., § 7521(a)(6). Respondents, like the courts below, engraft onto this meaning of "standard" a limiting component, defining it as only "[a] production mandat[e] that require[s] manufacturers to ensure that the vehicles they produce have particular emissions characteristics, whether individually or in the aggregate." Brief for Respondent South Coast Air Quality Management District 13 (emphases added). This confuses standards with the means of enforcing standards. Manufacturers (or purchasers) can be made responsible for ensuring that vehicles comply with emission standards, but the standards themselves are separate from those enforcement techniques. While standards target vehicles or engines, standard-enforcement efforts that are proscribed by § 209 can be directed to manufacturers or purchasers. The distinction between "standards," on the one hand, and methods of standard enforcement, on the other, is borne out in the provisions immediately following § 202. These separate provisions enforce the emission criteria i. e., the § 202 standards. Section 203 prohibits manufacturers from selling any new motor vehicle that is not covered by a "certificate of conformity." 42 U.S. C. § 7522(a). Section 206 254 enables manufacturers to obtain such a certificate by demonstrating to the Environmental Protection Agency that their vehicles or engines conform to the § 202 standards. § 7525. Sections 204 and 205 subject manufacturers, dealers, and others who violate the CAA to fines imposed in civil or administrative enforcement actions. §§ 7523-7524. By defining "standard" as a "production mandate directed toward manufacturers," respondents lump together § 202 and these other distinct statutory provisions, acknowledging a standard to be such only when it is combined with a mandate that prevents manufacturers from selling noncomplying vehicles. That a standard is a standard even when not enforced through manufacturer-directed regulation can be seen in Congress's use of the term in another portion of the CAA. As the District Court recognized, CAA § 246 (in conjunction with its accompanying provisions) requires state-adopted and federally approved "restrictions on the purchase of fleet vehicles to meet clean-air standards." 158 F. Supp. 2d, at 1118 (emphasis added); see also 42 U.S. C. §§ 7581-7590. (Respondents do not defend the District's Fleet Rules as authorized by this provision; the Rules do not comply with all of the requirements that it contains.) Clearly, Congress contemplated the enforcement of emission standards through purchase requirements.[6] Respondents contend that their qualified meaning of "standard" is necessary to prevent § 209(a) from pre-empting "far too much" by "encompass[ing] a broad range of state-level clean-air initiatives" such as voluntary incentive programs. 255 Brief for Respondent South Coast Air Quality Management District 29; id., at 29-30. But it is hard to see why limitation to mandates on manufacturers is necessary for this purpose; limitation to mandates on manufacturers and purchasers, or to mandates on anyone, would have the same salvific effect. We need not resolve application of § 209(a) to voluntary incentive programs in this case, since all the Fleet Rules are mandates. In addition to having no basis in the text of the statute, treating sales restrictions and purchase restrictions differently for pre-emption purposes would make no sense. The manufacturer's right to sell federally approved vehicles is meaningless in the absence of a purchaser's right to buy them. It is true that the Fleet Rules at issue here cover only certain purchasers and certain federally certified vehicles, and thus do not eliminate all demand for covered vehicles. But if one State or political subdivision may enact such rules, then so may any other; and the end result would undo Congress's carefully calibrated regulatory scheme. A command, accompanied by sanctions, that certain purchasers may buy only vehicles with particular emission characteristics is as much an "attempt to enforce" a "standard" as a command, accompanied by sanctions, that a certain percentage of a manufacturer's sales volume must consist of such vehicles. We decline to read into § 209(a) a purchase/ sale distinction that is not to be found in the text of § 209(a) or the structure of the CAA. III The dissent expresses many areas of disagreement with our interpretation, but this should not obscure its agreement with our answer to the question "whether these local Fleet Rules escape pre-emption . . . because they address the purchase of vehicles, rather than their manufacture or sale." Supra, at 249. The dissent joins us in answering "no." See post, at 262-263 (opinion of SOUTER, J.). It reaches a different 256 outcome in the case because (1) it feels free to read into the unconditional words of the statute a requirement for the courts to determine which purchase restrictions in fact coerce manufacture and which do not; and (2) because it believes that Fleet Rules containing a "commercial availability" proviso do not coerce manufacture. As to the first point: The language of § 209(a) is categorical. It is (as we have discussed) impossible to find in it an exception for standards imposed through purchase restrictions rather than directly upon manufacturers; it is even more inventive to discover an exception for only that subcategory of standards-imposed-through-purchase-restrictions that does not coerce manufacture. But even if one accepts that invention, one cannot conclude that these "provisos" save the day. For if a vehicle of the mandated type were commercially available, thus eliminating application of the proviso, the need to sell vehicles to persons governed by the Rule would effectively coerce manufacturers into meeting the artificially created demand. To say, as the dissent does, that this would be merely the consequence of "market demand and free competition," post, at 263, is fanciful. The demand is a demand, not generated by the market but compelled by the Rules, which in turn effectively compels production. To think that the Rules are invalid until such time as one manufacturer makes a compliant vehicle available, whereupon they become binding, seems to us quite bizarre. The dissent objects to our interpretive method, which neither invokes the "presumption against preemption" to determine the scope of pre-emption nor delves into legislative history. Post, at 260-261. Application of those methods, on which not all Members of this Court agree, demonstrably makes no difference to resolution of the principal question, which the dissent (after applying them) answers the same as we. As for the additional question that the dissent reaches, we think the same is true: The textual obstacles to the strained interpretation that would validate the Rules by reason 257 of the "commercial availability" provisos are insurmountable principally, the categorical words of § 209(a). The dissent contends that giving these words their natural meaning of barring implementation of standards at the purchase and sale stage renders superfluous the second sentence of § 209(a), which provides: "No State shall require certification, inspection, or any other approval relating to the control of emissions from any new motor vehicle or new motor vehicle engine as condition precedent to the initial retail sale, titling (if any), or registration of such motor vehicle, motor vehicle engine, or equipment." 42 U.S. C. § 7543(a). We think it not superfluous, since it makes clear that the term "attempt to enforce" in the first sentence is not limited to the actual imposition of penalties for violation, but includes steps preliminary to that action. Ibid. The sentence is, however, fatal to the dissent's interpretation of the statute. It categorically prohibits "certification, inspection, or any other approval" as conditions precedent to sale. Why in the world would it do that if it had no categorical objection to standards imposed at the sale stage? Why disable the States from assuring compliance with requirements that they are authorized to impose? The dissent next charges that our interpretation attributes carelessness to Congress because § 246 mandates fleet purchasing restrictions, but does so without specifying "notwithstanding" § 209(a). Post, at 264. That addition might have been nice, but hardly seems necessary. It is obvious, after all, that the principal sales restrictions against which § 209(a) is directed are those requiring compliance with state-imposed standards. What § 246 mandates are fleet purchase restrictions under federal standards designed precisely for federally required clean-fuel fleet vehicle programs which programs, in turn, must be federally approved as meeting detailed federal specifications. It is not surprising that a "notwithstanding" § 209(a) did not come to mind. Far from casting doubt upon our interpretation, § 246 258 is impossible to reconcile with the dissent's interpretation. The fleet purchase standards it mandates must comply strictly with federal specifications, being neither more lenient nor more demanding. But what is the use of imposing such a limitation if the States are entirely free to impose their own fleet purchase standards with entirely different specifications? Finally, the dissent says that we should "admit" that our opinion pre-empts voluntary incentive programs. Post, at 265-266. Voluntary programs are not at issue in this case, and are significantly different from command-and-control regulation. Suffice it to say that nothing in the present opinion necessarily entails pre-emption of voluntary programs. It is at least arguable that the phrase "adopt or attempt to enforce any standard" refers only to standards that are enforceable a possibility reinforced by the fact that the prohibition is imposed only on entities (States and political subdivisions) that have power to enforce. IV The courts below held all six of the Fleet Rules to be entirely outside the pre-emptive reach of § 209(a) based on reasoning that does not withstand scrutiny. In light of the principles articulated above, it appears likely that at least certain aspects of the Fleet Rules are pre-empted. For example, the District may have attempted to enforce CARB's ULEV, SULEV, and ZEV standards when, in Rule 1194, it required 50% of new passenger-car and medium-duty-vehicle purchases by private airport-shuttle van operators to "meet ULEV, SULEV, or ZEV emission standards" after July 1, 2001, and 100% to meet those standards after July 1, 2002.[7] See Rules 1194(d)(2)(A)-(B), App. 62. It does not necessarily follow, however, that the Fleet Rules are pre-empted in toto. We have not addressed a *259 number of issues that may affect the ultimate disposition of petitioners' suit, including the scope of petitioners' challenge, whether some of the Fleet Rules (or some applications of them) can be characterized as internal state purchase decisions (and, if so, whether a different standard for pre-emption applies), and whether § 209(a) pre-empts the Fleet Rules even as applied beyond the purchase of new vehicles (e. g., to lease arrangements or to the purchase of used vehicles). These questions were neither passed on below nor presented in the petition for certiorari. They are best addressed in the first instance by the lower courts in light of the principles articulated above. The judgment is vacated, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.	Respondent South Coast Air Quality Management District (District) is a political subdivision of California responsible for air pollution control in the Los Angeles metropolitan area and parts of surrounding counties that make up the South Coast Air Basin. It enacted six Fleet Rules that generally prohibit the purchase or lease by various public and private 249 fleet operators of vehicles that do not comply with stringent emission requirements. The question in this case is whether these local Fleet Rules escape pre-emption under 209(a) of the Clean Air Act (CAA), as renumbered and amended, 42 U.S. C. 7543(a), because they address the purchase of vehicles, rather than their manufacture or sale. I The District is responsible under state law for developing and implementing a "comprehensive basinwide air quality management plan" to reduce emission levels and thereby achieve and maintain "state and federal ambient air quality standards." Cal. Health & Safety Code Ann. 40402(e) (West 1996). Between June and October the District adopted six Fleet Rules. The Rules govern operators of fleets of street sweepers (Rule 1186.1), of passenger cars, light-duty trucks, and medium-duty vehicles (Rule 1191), of public transit vehicles and urban buses (Rule 1192), of solid waste collection vehicles (Rule 1193), of airport passenger transportation vehicles, including shuttles and taxicabs picking up airline passengers (Rule 1), and of heavy-duty on-road vehicles (Rule 1196). All six Rules apply to public operators; three apply to private operators as well (Rules 1186.1, 1193, and 1). The Fleet Rules contain detailed prescriptions regarding the types of vehicles that fleet operators must purchase or lease when adding or replacing fleet vehicles. Four of the Rules (1186.1, 1192, 1193, and 1196) require the purchase or lease of "alternative-fuel vehicles,"[1] and the other two 250 (1191 and 1) require the purchase or lease of either "alternative-fueled vehicles"[2] or vehicles that meet certain emission specifications established by the California Air Resources Board (CARB).[3] CARB is a statewide regulatory body that California law designates as "the air pollution control agency for all purposes set forth in federal law." Cal. 251 Health & Safety Code Ann. 39602 (West 1996). The Rules require operators to keep records of their purchases and leases and provide access to them upon request. See, e. g., Rule 1186.1(g)(1), App. 23. Violations expose fleet operators to fines and other sanctions. See Cal. Health & Safety Code Ann. 42400-42410, 40447.5 (West 1996 and Supp. 4). In August petitioner Engine Manufacturers Association sued the District and its officials, also respondents, claiming that the Fleet Rules are pre-empted by 209 of the CAA, which prohibits the adoption or attempted enforcement of any state or local "standard relating to the control of emissions from new motor vehicles or new motor vehicle engines." 42 U.S. C. 7543(a).[4] The District Court granted summary judgment to respondents, upholding the Rules in their entirety. It held that the Rules were not "standard[s]" under 209(a) because they regulate only the purchase of vehicles that are otherwise certified for sale in California. The District Court recognized that the Courts of Appeals for the First and Second Circuits had previously held that CAA 209(a) pre-empted state laws mandating that a specified percentage of a manufacturer's in-state sales be of "zero-emission vehicles." See Association of Int'l Automobile Mfrs., ; American Automobile Mfrs.[5] It did not express disagreement with these rulings, but distinguished them as involving a restriction on vehicle sales rather than vehicle purchases: "Where a state 252 regulation does not compel manufacturers to meet a new emissions limit, but rather affects the purchase of vehicles, as the Fleet Rules do, that regulation is not a standard." (CD Cal. 1). The Ninth Circuit affirmed on the reasoning of the District Court. (2). We granted certiorari. (3). II Section 209(a) of the CAA states: "No State or any political subdivision thereof shall adopt or attempt to enforce any standard relating to the control of emissions from new motor vehicles or new motor vehicle engines subject to this part. No State shall require certification, inspection, or any other approval relating to the control of emissions as condition precedent to the initial retail sale, titling (if any), or registration of such motor vehicle, motor vehicle engine, or equipment." 42 U.S. C. 7543(a). The District Court's determination that this express pre-emption provision did not invalidate the Fleet Rules hinged on its interpretation of the word "standard" to include only regulations that compel manufacturers to meet specified emission limits. This interpretation of "standard" in turn caused the court to draw a distinction between purchase restrictions (not pre-empted) and sale restrictions (pre-empted). Neither the manufacturer-specific interpretation of "standard" nor the resulting distinction between purchase and sale restrictions finds support in the text of 209(a) or the structure of the CAA. "Statutory construction must begin with the language employed by Congress and the assumption that the ordinary meaning of that language accurately expresses the legislative purpose." Park 'N Fly, Today, as in 1967 when 209(a) became law, "standard" is defined as that which "is established 253 by authority, custom, or general consent, as a model or example; criterion; test." Webster's Second New International Dictionary 2455 (5). The criteria referred to in 209(a) relate to the emission characteristics of a vehicle or engine. To meet them the vehicle or engine must not emit more than a certain amount of a given pollutant, must be equipped with a certain type of pollution-control device, or must have some other design feature related to the control of emissions. This interpretation is consistent with the use of "standard" throughout Title II of the CAA (which governs emissions from moving sources) to denote requirements such as numerical emission levels with which vehicles or engines must comply, e. g., 42 U.S. C. 7521(a)(3)(B)(ii), or emission-control technology with which they must be equipped, e. g., 7521(a)(6). Respondents, like the courts below, engraft onto this meaning of "standard" a limiting component, defining it as only "[a] production mandat[e] that require[s] manufacturers to ensure that the vehicles they produce have particular emissions characteristics, whether individually or in the aggregate." Brief for Respondent South Coast Air Quality Management District 13 (emphases added). This confuses standards with the means of enforcing standards. Manufacturers (or purchasers) can be made responsible for ensuring that vehicles comply with emission standards, but the standards themselves are separate from those enforcement techniques. While standards target vehicles or engines, standard-enforcement efforts that are proscribed by 209 can be directed to manufacturers or purchasers. The distinction between "standards," on the one hand, and methods of standard enforcement, on the other, is borne out in the provisions immediately following 202. These separate provisions enforce the emission criteria i. e., the 202 standards. Section 203 prohibits manufacturers from selling any new motor vehicle that is not covered by a "certificate of conformity." 42 U.S. C. 7522(a). Section 206 254 enables manufacturers to obtain such a certificate by demonstrating to the Environmental Protection Agency that their vehicles or engines conform to the 202 standards. 7525. Sections 204 and 205 subject manufacturers, dealers, and others who violate the CAA to fines imposed in civil or administrative enforcement actions. 7523-7524. By defining "standard" as a "production mandate directed toward manufacturers," respondents lump together 202 and these other distinct statutory provisions, acknowledging a standard to be such only when it is combined with a mandate that prevents manufacturers from selling noncomplying vehicles. That a standard is a standard even when not enforced through manufacturer-directed regulation can be seen in Congress's use of the term in another portion of the CAA. As the District Court recognized, CAA 246 (in conjunction with its accompanying provisions) requires state-adopted and federally approved "restrictions on the purchase of fleet vehicles to meet clean-air standards." 158 F. Supp. 2d, at ; see also 42 U.S. C. 7581-7590. (Respondents do not defend the District's Fleet Rules as authorized by this provision; the Rules do not comply with all of the requirements that it contains.) Clearly, Congress contemplated the enforcement of emission standards through purchase requirements.[6] Respondents contend that their qualified meaning of "standard" is necessary to prevent 209(a) from pre-empting "far too much" by "encompass[ing] a broad range of state-level clean-air initiatives" such as voluntary incentive programs. 255 Brief for Respondent South Coast Air Quality Management District 29; But it is hard to see why limitation to mandates on manufacturers is necessary for this purpose; limitation to mandates on manufacturers and purchasers, or to mandates on anyone, would have the same salvific effect. We need not resolve application of 209(a) to voluntary incentive programs in this case, since all the Fleet Rules are mandates. In addition to having no basis in the text of the statute, treating sales restrictions and purchase restrictions differently for pre-emption purposes would make no sense. The manufacturer's right to sell federally approved vehicles is meaningless in the absence of a purchaser's right to buy them. It is true that the Fleet Rules at issue here cover only certain purchasers and certain federally certified vehicles, and thus do not eliminate all demand for covered vehicles. But if one State or political subdivision may enact such rules, then so may any other; and the end result would undo Congress's carefully calibrated regulatory scheme. A command, accompanied by sanctions, that certain purchasers may buy only vehicles with particular emission characteristics is as much an "attempt to enforce" a "standard" as a command, accompanied by sanctions, that a certain percentage of a manufacturer's sales volume must consist of such vehicles. We decline to read into 209(a) a purchase/ sale distinction that is not to be found in the text of 209(a) or the structure of the CAA. III The dissent expresses many areas of disagreement with our interpretation, but this should not obscure its agreement with our answer to the question "whether these local Fleet Rules escape pre-emption because they address the purchase of vehicles, rather than their manufacture or sale." The dissent joins us in answering "no." See post, at 262-263 (opinion of SOUTER, J.). It reaches a different 256 outcome in the case because (1) it feels free to read into the unconditional words of the statute a requirement for the courts to determine which purchase restrictions in fact coerce manufacture and which do not; and (2) because it believes that Fleet Rules containing a "commercial availability" proviso do not coerce manufacture. As to the first point: The language of 209(a) is categorical. It is (as we have discussed) impossible to find in it an exception for standards imposed through purchase restrictions rather than directly upon manufacturers; it is even more inventive to discover an exception for only that subcategory of standards-imposed-through-purchase-restrictions that does not coerce manufacture. But even if one accepts that invention, one cannot conclude that these "provisos" save the day. For if a vehicle of the mandated type were commercially available, thus eliminating application of the proviso, the need to sell vehicles to persons governed by the Rule would effectively coerce manufacturers into meeting the artificially created demand. To say, as the dissent does, that this would be merely the consequence of "market demand and free competition," post, at 263, is fanciful. The demand is a demand, not generated by the market but compelled by the Rules, which in turn effectively compels production. To think that the Rules are invalid until such time as one manufacturer makes a compliant vehicle available, whereupon they become binding, seems to us quite bizarre. The dissent objects to our interpretive method, which neither invokes the "presumption against preemption" to determine the scope of pre-emption nor delves into legislative history. Post, at 260-261. Application of those methods, on which not all Members of this Court agree, demonstrably makes no difference to resolution of the principal question, which the dissent (after applying them) answers the same as we. As for the additional question that the dissent reaches, we think the same is true: The textual obstacles to the strained interpretation that would validate the Rules by reason 257 of the "commercial availability" provisos are insurmountable principally, the categorical words of 209(a). The dissent contends that giving these words their natural meaning of barring implementation of standards at the purchase and sale stage renders superfluous the second sentence of 209(a), which provides: "No State shall require certification, inspection, or any other approval relating to the control of emissions from any new motor vehicle or new motor vehicle engine as condition precedent to the initial retail sale, titling (if any), or registration of such motor vehicle, motor vehicle engine, or equipment." 42 U.S. C. 7543(a). We think it not superfluous, since it makes clear that the term "attempt to enforce" in the first sentence is not limited to the actual imposition of penalties for violation, but includes steps preliminary to that action. The sentence is, however, fatal to the dissent's interpretation of the statute. It categorically prohibits "certification, inspection, or any other approval" as conditions precedent to sale. Why in the world would it do that if it had no categorical objection to standards imposed at the sale stage? Why disable the States from assuring compliance with requirements that they are authorized to impose? The dissent next charges that our interpretation attributes carelessness to Congress because 246 mandates fleet purchasing restrictions, but does so without specifying "notwithstanding" 209(a). Post, at 264. That addition might have been nice, but hardly seems necessary. It is obvious, after all, that the principal sales restrictions against which 209(a) is directed are those requiring compliance with state-imposed standards. What 246 mandates are fleet purchase restrictions under federal standards designed precisely for federally required clean-fuel fleet vehicle programs which programs, in turn, must be federally approved as meeting detailed federal specifications. It is not surprising that a "notwithstanding" 209(a) did not come to mind. Far from casting doubt upon our interpretation, 246 258 is impossible to reconcile with the dissent's interpretation. The fleet purchase standards it mandates must comply strictly with federal specifications, being neither more lenient nor more demanding. But what is the use of imposing such a limitation if the States are entirely free to impose their own fleet purchase standards with entirely different specifications? Finally, the dissent says that we should "admit" that our opinion pre-empts voluntary incentive programs. Post, at 265-266. Voluntary programs are not at issue in this case, and are significantly different from command-and-control regulation. Suffice it to say that nothing in the present opinion necessarily entails pre-emption of voluntary programs. It is at least arguable that the phrase "adopt or attempt to enforce any standard" refers only to standards that are enforceable a possibility reinforced by the fact that the prohibition is imposed only on entities (States and political subdivisions) that have power to enforce. IV The courts below held all six of the Fleet Rules to be entirely outside the pre-emptive reach of 209(a) based on reasoning that does not withstand scrutiny. In light of the principles articulated above, it appears likely that at least certain aspects of the Fleet Rules are pre-empted. For example, the District may have attempted to enforce CARB's ULEV, SULEV, and ZEV standards when, in Rule 1, it required 50% of new passenger-car and medium-duty-vehicle purchases by private airport-shuttle van operators to "meet ULEV, SULEV, or ZEV emission standards" after July 1, 1, and 100% to meet those standards after July 1, 2.[7] See Rules 1(d)(2)(A)-(B), App. 62. It does not necessarily follow, however, that the Fleet Rules are pre-empted in toto. We have not addressed a *259 number of issues that may affect the ultimate disposition of petitioners' suit, including the scope of petitioners' challenge, whether some of the Fleet Rules (or some applications of them) can be characterized as internal state purchase decisions (and, if so, whether a different standard for pre-emption applies), and whether 209(a) pre-empts the Fleet Rules even as applied beyond the purchase of new vehicles (e. g., to lease arrangements or to the purchase of used vehicles). These questions were neither passed on below nor presented in the petition for certiorari. They are best addressed in the first instance by the lower courts in light of the principles articulated above. The judgment is vacated, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.	1,852
Justice Souter	dissenting	false	Engine Mfrs. Assn. v. South Coast Air Quality Management Dist.	2004-04-28	null	https://www.courtlistener.com/opinion/134734/engine-mfrs-assn-v-south-coast-air-quality-management-dist/	https://www.courtlistener.com/api/rest/v3/clusters/134734/	2,004	2003-050	1	8	1	The Court holds that preemption by the Clean Air Act, 77 Stat. 392, as amended, 42 U.S. C. § 7401 et seq., prohibits one of the most polluted regions in the United States[1] from requiring private fleet operators to buy clean engines that are readily available on the commercial market. I respectfully dissent and would hold that the South Coast Air Quality Management District Fleet Rules are not preempted by the Act. I So far as it concerns this case, § 209(a) of the Act provides that "[n]o State or any political subdivision thereof shall adopt or attempt to enforce any standard relating to the control of emissions from new motor vehicles or new motor vehicle engines subject to [Title II of the Act]." 42 U.S. C. 260 § 7543(a). The better reading of this provision rests on two interpretive principles the majority opinion does not address. First, "[i]n all pre-emption cases, and particularly in those [where] Congress has legislated . . . in a field which the States have traditionally occupied, we start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress." Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996) (citation and internal quotation marks omitted); see also Wisconsin Public Intervenor v. Mortier, 501 U.S. 597, 605 (1991) (applying presumption against preemption to a local regulation). The pertinence of this presumption against federal preemption is clear enough from the terms of the Act itself: § 101 states that "air pollution prevention (that is, the reduction or elimination, through any measures, of the amount of pollutants produced or created at the source) and air pollution control at its source is the primary responsibility of States and local governments." 42 U.S. C. § 7401(a)(3);[2] see Huron Portland Cement Co. v. Detroit, 362 U.S. 440, 442 (1960) ("Legislation designed to free from pollution the very air that people breathe clearly falls within the exercise of even the most traditional concept of what is compendiously known as the police power"). The resulting presumption against displacing law enacted or authorized by a State applies both to the "question whether 261 Congress intended any pre-emption at all" and to "questions concerning the scope of [§ 209(a)'s] intended invalidation of state law." Medtronic, supra, at 485 (emphasis in original). Second, legislative history should inform interpretive choice, and the legislative history of this preemption provision shows that Congress's purpose in passing it was to stop States from imposing regulatory requirements that directly limited what manufacturers could sell. During the hearings leading up to the 1967 amendments, "[t]he auto industry . . . was adamant that the nature of their manufacturing mechanism required a single national standard in order to eliminate undue economic strain on the industry." S. Rep. No. 403, 90th Cong., 1st Sess., 33 (1967). Auto manufacturers sought to safeguard "[t]he ability of those engaged in the manufacture of automobiles to obtain clear and consistent answers concerning emission controls," and to prevent "a chaotic situation from developing in interstate commerce in new motor vehicles." H. R. Rep. No. 728, 90th Cong., 1st Sess., 21 (1967). Cf. Air Pollution Control, Hearings on S. 306 before a Special Subcommittee on Air and Water Pollution of the Senate Committee on Public Works, 89th Cong., 1st Sess., 91 (1965) (Sen. Muskie) ("Do you think a given manufacturer could produce automobiles meeting 50 standards?"). Congress was not responding to concerns about varying regional appetites for whatever vehicle models the manufacturers did produce; it was addressing the industry's fear that States would bar manufacturers from selling engines that failed to meet specifications that might be different in each State.[3] 262 Section 209(a) can easily be read to give full effect to both principles. As amended in 1967, § 202 of the Act authorized federal regulators to promulgate emissions standards for "any class or classes of new motor vehicles or new motor vehicle engines." § 202(a), 81 Stat. 499. The 1967 amendments in turn defined "new motor vehicle" as "a motor vehicle the equitable or legal title to which has never been transferred to an ultimate purchaser," and a "new motor vehicle engine" as "an engine in a new motor vehicle or a motor vehicle engine the equitable or legal title to which has never been transferred to the ultimate purchaser." § 212(3), 81 Stat. 503. Section 202 of the 1967 Act, in other words, is naturally understood as concerning itself with vehicles prior to sale and eligible to be sold. Section 203 further underscored this focus on what manufacturers could produce for sale: as incorporated in the 1967 amendments, § 203 prohibited a variety of acts by manufacturers, but left vehicle purchasers and users entirely unregulated. 81 Stat. 499. On this permissible reading of the 1967 amendments, § 209(a) has no preemptive application to South Coast's fleet purchase requirement. The National Government took over the direct regulation of manufacturers' design specifications addressing tailpipe emissions, and disabled States (the California exception aside, see n. 3, supra) from engaging in the same project. The "standards" that § 209(a) preempts, accordingly, are production mandates imposed directly on manufacturers as a condition of sale. Section 209(a) simply does not speak to regulations that govern a vehicle buyer's choice between various commercially available options. This is not to say that every conceivable purchase restriction would be categorically free from preemption. A state law prohibiting any purchase by any buyer of any vehicle that failed to meet novel, state-specified emissions criteria would have the same effect as direct regulation of car manufacturers, and would be preempted by § 209(a) as an "attempt to enforce [a] standard relating to the control of emissions 263 from new motor vehicles." 42 U.S. C. § 7543(a). But that fantasy is of no concern here, owing to a third central point that the majority passes over: South Coast's Fleet Rules require the purchase of cleaner engines only if cleaner engines are commercially available. E. g., App. 69 (Fleet Rule 1196(e)(1)(C) (exempting fleets from Rule if no complying engine "is commercially available from any manufacturer . . . or could be used in a specific application")); see also App. 21, 30, 50, 55, 63 (Fleet Rules 1186.1(e), 1191(f)(8), 1192(e)(2), 1193(e)(3), and 1194(e)(2)). If no one is selling cleaner engines, fleet owners are free to buy any vehicles they desire. The manufacturers would, of course, understand that a market existed for cleaner engines, and if one auto maker began producing them, others might well be induced to do the same; but that would not matter under the Act, which was not adopted to exempt producers from market demand and free competition. So long as a purchase requirement is subject to a commercial availability proviso, there is no basis to condemn that kind of market-based limitation along with the state command-and-control regulation of production specifications that prompted the passage of § 209. In sum, I am reading "standard" in a practical way that keeps the Act's preemption of standards in tune with Congress's object in providing for preemption, which was to prevent the States from forcing manufacturers to produce engines with particular characteristics as a legal condition of sale. The majority's approach eliminates this consideration of legislative purposes, as well as the presumption against preemption, by acting as though anything that could possibly be described as a standard must necessarily be a "standard" for the purposes of the Act: a standard is a standard is a standard.[4] The majority reveals its misalliance with Gertrude 264 Stein throughout its response to this dissent. See ante, at 256-257, 258. II Reading the statute this way not only does a better job of honoring preemption principles consistently with congressional intent, but avoids some difficulties on the majority's contrary interpretation. To begin with, the Court's broad definition of an "`attempt to enforce any standard relating to the control of emissions,'" ante, at 252, renders superfluous the second sentence of § 209(a), which provides that "[n]o State shall require certification, inspection, or any other approval relating to the control of emissions from any new motor vehicle . . . as condition precedent to the initial retail sale, titling (if any), or registration of such motor vehicle," 42 U.S. C. § 7543(a). At the very least, on the majority's view, it is hard to imagine any state inspection requirement going to the control of emissions from a new motor vehicle that would not be struck down anyway as an attempt to enforce an emissions standard. Next, on the majority's broad interpretation of "standard," Congress would seem to have been careless in drafting a critical section of the Act. In the one clear instance of which we are aware in which the Act authorizes States to enact laws that would otherwise be preempted by § 209, Congress expressly provided that the authorization is effective notwithstanding that preemption section. See 42 U.S. C. § 7507 (authorizing States to adopt California production mandates "[n]otwithstanding section 7543(a) of this title"). The natural negative implication is that, if a statutory authorization does not include such a "notwithstanding" clause or something similar, its subject matter would not otherwise be preempted by § 209(a). Given that, the majority's interpretation of the scope of § 209(a) is difficult to square with § 246, which requires States to establish fleet purchasing requirements for "covered fleet operator[s]" in ozone and carbon monoxide "nonattainment areas" (that is, regions struggling 265 with especially intractable pollution), 42 U.S. C. § 7586. Section 246 thus requires States, in some cases, to establish precisely the kind of purchaser regulations (adopted here by a lower level governmental authority) that the majority claims have been preempted by § 209(a). But § 246 gives no indication that its subject matter would otherwise be preempted; there is certainly no "notwithstanding" clause. This silence suggests that Congress never thought § 209(a) would have any preemptive effect on fleet purchasing requirements like the ones at issue. Finally, the Court suggests that both voluntary incentive programs, ante, at 254-255, and internal state purchasing decisions, ante, at 258-259, may well be permissible on its reading of § 209(a). These suggestions are important in avoiding apparent implausibility in the majority's position; if a State were said to be barred even from deciding to run a cleaner fleet than the National Government required, it would take an airtight argument to convince anyone that Congress could have meant such a thing. But it is difficult, when actually applying the majority's expansive sense of forbidden "standard," to explain how the specification of emissions characteristics in a State's internal procurement guidelines could escape being considered an impermissible "adopt[ion of a] standard," 42 U.S. C. § 7543(a), even if the standard only guided local purchasing decisions. By the same token, it is not obvious how, without some legal sleight of hand, the majority can avoid preempting voluntary incentive programs aimed at the private sector; the benefit proffered by such schemes hinges on the recipient's willingness to buy a vehicle or engine that complies with an emissions standard (i. e., a vehicle or engine that, in the words of the majority, "must not emit more than a certain amount of a given pollutant, must be equipped with a certain type of pollution-control device, or must have some other design feature related to the control of emissions," ante, at 253). Such a program clearly "adopt[s]" an emissions standard as *266 the majority defines it. Cf. ibid. (cautioning respondents not to "confus[e] standards with the means of enforcing standards"). The Court should, then, admit to preemption of state programs that even petitioners concede are not barred by § 209(a). See Reply Brief for Petitioners 7 (acknowledging that § 209(a) does not preempt voluntary incentive programs). That is not a strong recommendation for the majority's reading. III These objections to the Court's interpretation are not, to be sure, dispositive, standing alone. They call attention to untidy details, and rightly understood legislation can be untidy: statutes can be unsystematic, redundant, and fuzzy about drawing lines. As a purely textual matter, both the majority's reading and mine have strengths and weaknesses. The point is that the tie breakers cut in favor of sustaining the South Coast Fleet Rules. My reading adheres more closely to the legislative history of § 209(a). It takes proper account of the fact that the Fleet Rules with this commercial availability condition do not require manufacturers, even indirectly, to produce a new kind of engine. And, most importantly, my reading adheres to the well-established presumption against preemption.	The Court holds that preemption by the Clean Air Act, as amended, 42 U.S. C. 7401 et seq., prohibits one of the most polluted regions in the United States[1] from requiring private fleet operators to buy clean engines that are readily available on the commercial market. I respectfully dissent and would hold that the South Coast Air Quality Management District Fleet Rules are not preempted by the Act. I So far as it concerns this case, 209(a) of the Act provides that "[n]o State or any political subdivision thereof shall adopt or attempt to enforce any standard relating to the control of emissions from new motor vehicles or new motor vehicle engines subject to [Title II of the Act]." 42 U.S. C. 260 754(a). The better reading of this provision rests on two interpretive principles the majority opinion does not address. First, "[i]n all pre-emption cases, and particularly in those [where] Congress has legislated in a field which the States have traditionally occupied, we start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress." ; see also Wisconsin Public The pertinence of this presumption against federal preemption is clear enough from the terms of the Act itself: 101 states that "air pollution prevention (that is, the reduction or elimination, through any measures, of the amount of pollutants produced or created at the source) and air pollution control at its source is the primary responsibility of States and local governments." 42 U.S. C. 7401(a)();[2] see Huron Portland Cement The resulting presumption against displacing law enacted or authorized by a State applies both to the "question whether 261 Congress intended any pre-emption at all" and to "questions concerning the scope of [ 209(a)'s] intended invalidation of state law." at Second, legislative history should inform interpretive choice, and the legislative history of this preemption provision shows that Congress's purpose in passing it was to stop States from imposing regulatory requirements that directly limited what manufacturers could sell. During the hearings leading up to the 1967 amendments, "[t]he auto industry was adamant that the nature of their manufacturing mechanism required a single national standard in order to eliminate undue economic strain on the industry." S. Rep. No. 40, 90th Cong., 1st Sess., (1967). Auto manufacturers sought to safeguard "[t]he ability of those engaged in the manufacture of automobiles to obtain clear and consistent answers concerning emission controls," and to prevent "a chaotic situation from developing in interstate commerce in new motor vehicles." H. R. Rep. No. 728, 90th Cong., 1st Sess., 21 (1967). Cf. Air Pollution Control, Hearings on S. 06 before a Special Subcommittee on Air and Water Pollution of the Senate Committee on Public Works, 89th Cong., 1st Sess., 91 (1965) (Sen. Muskie) ("Do you think a given manufacturer could produce automobiles meeting 50 standards?"). Congress was not responding to concerns about varying regional appetites for whatever vehicle models the manufacturers did produce; it was addressing the industry's fear that States would bar manufacturers from selling engines that failed to meet specifications that might be different in each State.[] 262 Section 209(a) can easily be read to give full effect to both principles. As amended in 1967, 202 of the Act authorized federal regulators to promulgate emissions standards for "any class or classes of new motor vehicles or new motor vehicle engines." 202(a), The 1967 amendments in turn defined "new motor vehicle" as "a motor vehicle the equitable or legal title to which has never been transferred to an ultimate purchaser," and a "new motor vehicle engine" as "an engine in a new motor vehicle or a motor vehicle engine the equitable or legal title to which has never been transferred to the ultimate purchaser." 212(), Section 202 of the 1967 Act, in other words, is naturally understood as concerning itself with vehicles prior to sale and eligible to be sold. Section 20 further underscored this focus on what manufacturers could produce for sale: as incorporated in the 1967 amendments, 20 prohibited a variety of acts by manufacturers, but left vehicle purchasers and users entirely unregulated. On this permissible reading of the 1967 amendments, 209(a) has no preemptive application to South Coast's fleet purchase requirement. The National Government took over the direct regulation of manufacturers' design specifications addressing tailpipe emissions, and disabled States (the California exception aside, see n. from engaging in the same project. The "standards" that 209(a) preempts, accordingly, are production mandates imposed directly on manufacturers as a condition of sale. Section 209(a) simply does not speak to regulations that govern a vehicle buyer's choice between various commercially available options. This is not to say that every conceivable purchase restriction would be categorically free from preemption. A state law prohibiting any purchase by any buyer of any vehicle that failed to meet novel, state-specified emissions criteria would have the same effect as direct regulation of car manufacturers, and would be preempted by 209(a) as an "attempt to enforce [a] standard relating to the control of emissions 26 from new motor vehicles." 42 U.S. C. 754(a). But that fantasy is of no concern here, owing to a third central point that the majority passes over: South Coast's Fleet Rules require the purchase of cleaner engines only if cleaner engines are commercially available. E. g., App. 69 (Fleet Rule 1196(e)(1)(C) (exempting fleets from Rule if no complying engine "is commercially available from any manufacturer or could be used in a specific application")); see also App. 21, 0, 50, 55, 6 (Fleet Rules 1186.1(e), 1191(f)(8), 1192(e)(2), 119(e)(), and 1194(e)(2)). If no one is selling cleaner engines, fleet owners are free to buy any vehicles they desire. The manufacturers would, of course, understand that a market existed for cleaner engines, and if one auto maker began producing them, others might well be induced to do the same; but that would not matter under the Act, which was not adopted to exempt producers from market demand and free competition. So long as a purchase requirement is subject to a commercial availability proviso, there is no basis to condemn that kind of market-based limitation along with the state command-and-control regulation of production specifications that prompted the passage of 209. In sum, I am reading "standard" in a practical way that keeps the Act's preemption of standards in tune with Congress's object in providing for preemption, which was to prevent the States from forcing manufacturers to produce engines with particular characteristics as a legal condition of sale. The majority's approach eliminates this consideration of legislative purposes, as well as the presumption against preemption, by acting as though anything that could possibly be described as a standard must necessarily be a "standard" for the purposes of the Act: a standard is a standard is a standard.[4] The majority reveals its misalliance with Gertrude 264 Stein throughout its response to this dissent. See ante, at 256-257, 258. II Reading the statute this way not only does a better job of honoring preemption principles consistently with congressional intent, but avoids some difficulties on the majority's contrary interpretation. To begin with, the Court's broad definition of an "`attempt to enforce any standard relating to the control of emissions,'" ante, at 252, renders superfluous the second sentence of 209(a), which provides that "[n]o State shall require certification, inspection, or any other approval relating to the control of emissions from any new motor vehicle as condition precedent to the initial retail sale, titling (if any), or registration of such motor vehicle," 42 U.S. C. 754(a). At the very least, on the majority's view, it is hard to imagine any state inspection requirement going to the control of emissions from a new motor vehicle that would not be struck down anyway as an attempt to enforce an emissions standard. Next, on the majority's broad interpretation of "standard," Congress would seem to have been careless in drafting a critical section of the Act. In the one clear instance of which we are aware in which the Act authorizes States to enact laws that would otherwise be preempted by 209, Congress expressly provided that the authorization is effective notwithstanding that preemption section. See 42 U.S. C. 7507 (authorizing States to adopt California production mandates "[n]otwithstanding section 754(a) of this title"). The natural negative implication is that, if a statutory authorization does not include such a "notwithstanding" clause or something similar, its subject matter would not otherwise be preempted by 209(a). Given that, the majority's interpretation of the scope of 209(a) is difficult to square with 246, which requires States to establish fleet purchasing requirements for "covered fleet operator[s]" in ozone and carbon monoxide "nonattainment areas" (that is, regions struggling 265 with especially intractable pollution), 42 U.S. C. 7586. Section 246 thus requires States, in some cases, to establish precisely the kind of purchaser regulations (adopted here by a lower level governmental authority) that the majority claims have been preempted by 209(a). But 246 gives no indication that its subject matter would otherwise be preempted; there is certainly no "notwithstanding" clause. This silence suggests that Congress never thought 209(a) would have any preemptive effect on fleet purchasing requirements like the ones at issue. Finally, the Court suggests that both voluntary incentive programs, ante, at 254-255, and internal state purchasing decisions, ante, at 258-259, may well be permissible on its reading of 209(a). These suggestions are important in avoiding apparent implausibility in the majority's position; if a State were said to be barred even from deciding to run a cleaner fleet than the National Government required, it would take an airtight argument to convince anyone that Congress could have meant such a thing. But it is difficult, when actually applying the majority's expansive sense of forbidden "standard," to explain how the specification of emissions characteristics in a State's internal procurement guidelines could escape being considered an impermissible "adopt[ion of a] standard," 42 U.S. C. 754(a), even if the standard only guided local purchasing decisions. By the same token, it is not obvious how, without some legal sleight of hand, the majority can avoid preempting voluntary incentive programs aimed at the private sector; the benefit proffered by such schemes hinges on the recipient's willingness to buy a vehicle or engine that complies with an emissions standard (i. e., a vehicle or engine that, in the words of the majority, "must not emit more than a certain amount of a given pollutant, must be equipped with a certain type of pollution-control device, or must have some other design feature related to the control of emissions," ante, at 25). Such a program clearly "adopt[s]" an emissions standard as *266 the majority defines it. Cf. The Court should, then, admit to preemption of state programs that even petitioners concede are not barred by 209(a). See Reply Brief for Petitioners 7 (acknowledging that 209(a) does not preempt voluntary incentive programs). That is not a strong recommendation for the majority's reading. III These objections to the Court's interpretation are not, to be sure, dispositive, standing alone. They call attention to untidy details, and rightly understood legislation can be untidy: statutes can be unsystematic, redundant, and fuzzy about drawing lines. As a purely textual matter, both the majority's reading and mine have strengths and weaknesses. The point is that the tie breakers cut in favor of sustaining the South Coast Fleet Rules. My reading adheres more closely to the legislative history of 209(a). It takes proper account of the fact that the Fleet Rules with this commercial availability condition do not require manufacturers, even indirectly, to produce a new kind of engine. And, most importantly, my reading adheres to the well-established presumption against preemption.	1,853
Justice Breyer	majority	false	United States v. Ruiz	2002-06-24	null	https://www.courtlistener.com/opinion/121166/united-states-v-ruiz/	https://www.courtlistener.com/api/rest/v3/clusters/121166/	2,002	2001-078	1	9	0	In this case we primarily consider whether the Fifth and Sixth Amendments require federal prosecutors, before entering into a binding plea agreement with a criminal defendant, to disclose "impeachment information relating to any informants or other witnesses." App. to Pet. for Cert. 46a. We hold that the Constitution does not require that disclosure. I After immigration agents found 30 kilograms of marijuana in Angela Ruiz's luggage, federal prosecutors offered her what is known in the Southern District of California as a "fast track" plea bargain. That bargainstandard in that districtasks a defendant to waive indictment, trial, and an appeal. In return, the Government agrees to recommend to the sentencing judge a two-level departure downward from the otherwise applicable United States Sentencing Guidelines sentence. In Ruiz's case, a two-level departure downward would have shortened the ordinary Guidelines-specified 18-to-24-month sentencing range by 6 months, to 12-to-18 months. 241 F.3d 1157, 1161 (2001). The prosecutors' proposed plea agreement contains a set of detailed terms. Among other things, it specifies that "any [known] information establishing the factual innocence of the defendant" "has been turned over to the defendant," and it acknowledges the Government's "continuing duty to provide such information." App. to Pet. for Cert. 45a46a. At the same time it requires that the defendant "waiv[e] the right" to receive "impeachment information relating to any informants or other witnesses" as well as the right to receive information supporting any affirmative defense the defendant raises if the case goes to trial. Id., at 46a. Because Ruiz would not agree to this last-mentioned waiver, the prosecutors withdrew their bargaining offer. The Government then indicted Ruiz for unlawful drug possession. And despite 626 the absence of any agreement, Ruiz ultimately pleaded guilty. At sentencing, Ruiz asked the judge to grant her the same two-level downward departure that the Government would have recommended had she accepted the "fast track" agreement. The Government opposed her request, and the District Court denied it, imposing a standard Guideline sentence instead. 241 F.3d, at 1161. Relying on 18 U.S. C. § 3742, see infra, at 627, 628-629, Ruiz appealed her sentence to the United States Court of Appeals for the Ninth Circuit. The Ninth Circuit vacated the District Court's sentencing determination. The Ninth Circuit pointed out that the Constitution requires prosecutors to make certain impeachment information available to a defendant before trial. 241 F.3d, at 1166. It decided that this obligation entitles defendants to receive that same information before they enter into a plea agreement. Id., at 1164. The Ninth Circuit also decided that the Constitution prohibits defendants from waiving their right to that information. Id., at 1165-1166. And it held that the prosecutors' standard "fast track" plea agreement was unlawful because it insisted upon that waiver. Id., at 1167. The Ninth Circuit remanded the case so that the District Court could decide any related factual disputes and determine an appropriate remedy. Id., at 1169. The Government sought certiorari. It stressed what it considered serious adverse practical implications of the Ninth Circuit's constitutional holding. And it added that the holding is unique among courts of appeals. Pet. for Cert. 8. We granted the Government's petition. 534 U.S. 1074 (2002). II At the outset, we note that a question of statutory jurisdiction potentially blocks our consideration of the Ninth Circuit's constitutional holding. The relevant statute says that a 627 "defendant may file a notice of appeal . . . for review . . . if the sentence "(1) was imposed in violation of law; "(2) was imposed as a result of an incorrect application of the sentencing guidelines; or "(3) is greater than [the Guideline] specified [sentence] . . . ; or "(4) was imposed for an offense for which there is no sentencing guideline and is plainly unreasonable." 18 U.S. C. § 3742(a). Every Circuit has held that this statute does not authorize a defendant to appeal a sentence where the ground for appeal consists of a claim that the district court abused its discretion in refusing to depart. See, e. g., United States v. Conway, 81 F.3d 15, 16 (CA1 1996); United States v. Lawal, 17 F.3d 560, 562 (CA2 1994); United States v. Powell, 269 F.3d 175, 179 (CA3 2001); United States v. Ivester, 75 F.3d 182, 183 (CA4 1996); United States v. Cooper, 274 F.3d 230, 248 (CA5 2001); United States v. Scott, 74 F.3d 107, 112 (CA6 1996); United States v. Byrd, 263 F.3d 705, 707 (CA7 2001); United States v. Mora-Higuera, 269 F.3d 905, 913 (CA8 2001); United States v. Garcia-Garcia, 927 F.2d 489, 490 (CA9 1991); United States v. Coddington, 118 F.3d 1439, 1441 (CA10 1997); United States v. Calderon, 127 F.3d 1314, 1342 (CA11 1997); In re Sealed Case No. 98-3116, 199 F.3d 488, 491-492 (CADC 1999). The statute does, however, authorize an appeal from a sentence that "was imposed in violation of law." Two quite different theories might support appellate jurisdiction pursuant to that provision. First, as the Court of Appeals recognized, if the District Court's sentencing decision rested on a mistaken belief that it lacked the legal power to grant a departure, the quoted provision would apply. 241 F.3d, at 1162, n. 2. Our reading of the record, however, convinces us that the District Judge correctly understood that he had such discretion but decided not to exercise it. We therefore reject 628 that basis for finding appellate jurisdiction. Second, if respondent's constitutional claim, discussed in Part III, infra, were sound, her sentence would have been "imposed in violation of law." Thus, if she had prevailed on the merits, her victory would also have confirmed the jurisdiction of the Court of Appeals. Although we ultimately conclude that respondent's sentence was not "imposed in violation of law" and therefore that § 3742(a)(1) does not authorize an appeal in a case of this kind, it is familiar law that a federal court always has jurisdiction to determine its own jurisdiction. See United States v. Mine Workers, 330 U.S. 258, 291 (1947). In order to make that determination, it was necessary for the Ninth Circuit to address the merits. We therefore hold that appellate jurisdiction was proper. III The constitutional question concerns a federal criminal defendant's waiver of the right to receive from prosecutors exculpatory impeachment materiala right that the Constitution provides as part of its basic "fair trial" guarantee. See U. S. Const., Amdts. 5, 6. See also Brady v. Maryland, 373 U.S. 83, 87 (1963) (Due process requires prosecutors to "avoi[d] . . . an unfair trial" by making available "upon request" evidence "favorable to an accused . . . where the evidence is material either to guilt or to punishment"); United States v. Agurs, 427 U.S. 97, 112-113 (1976) (defense request unnecessary); Kyles v. Whitley, 514 U.S. 419, 435 (1995) (exculpatory evidence is evidence the suppression of which would "undermine confidence in the verdict"); Giglio v. United States, 405 U.S. 150, 154 (1972) (exculpatory evidence includes "evidence affecting" witness "credibility," where the witness' "reliability" is likely "determinative of guilt or innocence"). When a defendant pleads guilty he or she, of course, forgoes not only a fair trial, but also other accompanying constitutional 629 guarantees. Boykin v. Alabama, 395 U.S. 238, 243 (1969) (pleading guilty implicates the Fifth Amendment privilege against self-incrimination, the Sixth Amendment right to confront one's accusers, and the Sixth Amendment right to trial by jury). Given the seriousness of the matter, the Constitution insists, among other things, that the defendant enter a guilty plea that is "voluntary" and that the defendant must make related waivers "knowing[ly], intelligent[ly], [and] with sufficient awareness of the relevant circumstances and likely consequences." Brady v. United States, 397 U.S. 742, 748 (1970); see also Boykin, supra, at 242. In this case, the Ninth Circuit in effect held that a guilty plea is not "voluntary" (and that the defendant could not, by pleading guilty, waive her right to a fair trial) unless the prosecutors first made the same disclosure of material impeachment information that the prosecutors would have had to make had the defendant insisted upon a trial. We must decide whether the Constitution requires that preguilty plea disclosure of impeachment information. We conclude that it does not. First, impeachment information is special in relation to the fairness of a trial, not in respect to whether a plea is voluntary ("knowing," "intelligent," and "sufficient[ly] aware"). Of course, the more information the defendant has, the more aware he is of the likely consequences of a plea, waiver, or decision, and the wiser that decision will likely be. But the Constitution does not require the prosecutor to share all useful information with the defendant. Weatherford v. Bursey, 429 U.S. 545, 559 (1977) ("There is no general constitutional right to discovery in a criminal case"). And the law ordinarily considers a waiver knowing, intelligent, and sufficiently aware if the defendant fully understands the nature of the right and how it would likely apply in general in the circumstanceseven though the defendant may not know the specific detailed consequences of invoking it. A defendant, for example, may waive his right to remain silent, his 630 right to a jury trial, or his right to counsel even if the defendant does not know the specific questions the authorities intend to ask, who will likely serve on the jury, or the particular lawyer the State might otherwise provide. Cf. Colorado v. Spring, 479 U.S. 564, 573-575 (1987) (Fifth Amendment privilege against self-incrimination waived when defendant received standard Miranda warnings regarding the nature of the right but not told the specific interrogation questions to be asked). It is particularly difficult to characterize impeachment information as critical information of which the defendant must always be aware prior to pleading guilty given the random way in which such information may, or may not, help a particular defendant. The degree of help that impeachment information can provide will depend upon the defendant's own independent knowledge of the prosecution's potential casea matter that the Constitution does not require prosecutors to disclose. Second, we have found no legal authority embodied either in this Court's past cases or in cases from other circuits that provides significant support for the Ninth Circuit's decision. To the contrary, this Court has found that the Constitution, in respect to a defendant's awareness of relevant circumstances, does not require complete knowledge of the relevant circumstances, but permits a court to accept a guilty plea, with its accompanying waiver of various constitutional rights, despite various forms of misapprehension under which a defendant might labor. See Brady v. United States, 397 U. S., at 757 (defendant "misapprehended the quality of the State's case"); ibid. (defendant misapprehended "the likely penalties"); ibid. (defendant failed to "anticipate" a change in the law regarding relevant "punishments"); McMann v. Richardson, 397 U.S. 759, 770 (1970) (counsel "misjudged the admissibility" of a "confession"); United States v. Broce, 488 U.S. 563, 573 (1989) (counsel failed to point out a potential defense); Tollett v. Henderson, 411 U.S. 258, 267 631 (1973) (counsel failed to find a potential constitutional infirmity in grand jury proceedings). It is difficult to distinguish, in terms of importance, (1) a defendant's ignorance of grounds for impeachment of potential witnesses at a possible future trial from (2) the varying forms of ignorance at issue in these cases. Third, due process considerations, the very considerations that led this Court to find trial-related rights to exculpatory and impeachment information in Brady and Giglio, argue against the existence of the "right" that the Ninth Circuit found here. This Court has said that due process considerations include not only (1) the nature of the private interest at stake, but also (2) the value of the additional safeguard, and (3) the adverse impact of the requirement upon the Government's interests. Ake v. Oklahoma, 470 U.S. 68, 77 (1985). Here, as we have just pointed out, the added value of the Ninth Circuit's "right" to a defendant is often limited, for it depends upon the defendant's independent awareness of the details of the Government's case. And in any case, as the proposed plea agreement at issue here specifies, the Government will provide "any information establishing the factual innocence of the defendant" regardless. That fact, along with other guilty-plea safeguards, see Fed. Rule Crim. Proc. 11, diminishes the force of Ruiz's concern that, in the absence of impeachment information, innocent individuals, accused of crimes, will plead guilty. Cf. McCarthy v. United States, 394 U.S. 459, 465-467 (1969) (discussing Rule 11's role in protecting a defendant's constitutional rights). At the same time, a constitutional obligation to provide impeachment information during plea bargaining, prior to entry of a guilty plea, could seriously interfere with the Government's interest in securing those guilty pleas that are factually justified, desired by defendants, and help to secure the efficient administration of justice. The Ninth Circuit's rule risks premature disclosure of Government witness information, which, the Government tells us, could "disrupt ongoing 632 investigations" and expose prospective witnesses to serious harm. Brief for United States 25. Cf. Amendments to Federal Rules of Criminal Procedure: Hearings before the Subcommittee on Criminal Justice of the House Committee on the Judiciary, 94th Cong., 1st Sess., 92 (1975) (statement of John C. Keeney, Acting Assistant Attorney General, Criminal Div., Dept. of Justice) (opposing mandated witness disclosure three days before trial because of documented instances of witness intimidation). And the careful tailoring that characterizes most legal Government witness disclosure requirements suggests recognition by both Congress and the Federal Rules Committees that such concerns are valid. See, e. g., 18 U.S. C. § 3432 (witness list disclosure required in capital cases three days before trial with exceptions); § 3500 (Government witness statements ordinarily subject to discovery only after testimony given); Fed. Rule Crim. Proc. 16(a)(2) (embodies limitations of 18 U.S. C. § 3500). Compare 156 F. R. D. 460, 461-462 (1994) (congressional proposal to significantly broaden § 3500) with 167 F. R. D. 221, 223, n. (judicial conference opposing congressional proposal). Consequently, the Ninth Circuit's requirement could force the Government to abandon its "general practice" of not "disclos[ing] to a defendant pleading guilty information that would reveal the identities of cooperating informants, undercover investigators, or other prospective witnesses." Brief for United States 25. It could require the Government to devote substantially more resources to trial preparation prior to plea bargaining, thereby depriving the pleabargaining process of its main resource-saving advantages. Or it could lead the Government instead to abandon its heavy reliance upon plea bargaining in a vast number90% or moreof federal criminal cases. We cannot say that the Constitution's due process requirement demands so radical a change in the criminal justice process in order to achieve so comparatively small a constitutional benefit. 633 These considerations, taken together, lead us to conclude that the Constitution does not require the Government to disclose material impeachment evidence prior to entering a plea agreement with a criminal defendant. In addition, we note that the "fast track" plea agreement requires a defendant to waive her right to receive information the Government has regarding any "affirmative defense" she raises at trial. App. to Pet. for Cert. 46a. We do not believe the Constitution here requires provision of this information to the defendant prior to plea bargainingfor most (though not all) of the reasons previously stated. That is to say, in the context of this agreement, the need for this information is more closely related to the fairness of a trial than to the voluntariness of the plea; the value in terms of the defendant's added awareness of relevant circumstances is ordinarily limited; yet the added burden imposed upon the Government by requiring its provision well in advance of trial (often before trial preparation begins) can be serious, thereby significantly interfering with the administration of the plea-bargaining process. For these reasons the judgment of the Court of Appeals for the Ninth Circuit is Reversed. Justice Thomas, concurring in the judgment.	In this case we primarily consider whether the Fifth and Sixth Amendments require federal prosecutors, before entering into a binding plea agreement with a criminal defendant, to disclose "impeachment information relating to any informants or other witnesses." App. to Pet. for Cert. 46a. We hold that the Constitution does not require that disclosure. I After immigration agents found 30 kilograms of marijuana in Angela Ruiz's luggage, federal prosecutors offered her what is known in the Southern District of California as a "fast track" plea bargain. That bargainstandard in that districtasks a defendant to waive indictment, trial, and an appeal. In return, the Government agrees to recommend to the sentencing judge a two-level departure downward from the otherwise applicable United Sentencing Guidelines sentence. In Ruiz's case, a two-level departure downward would have shortened the ordinary Guidelines-specified 18-to-24-month sentencing range by 6 months, to 12-to-18 months. The prosecutors' proposed plea agreement contains a set of detailed terms. Among other things, it specifies that "any [known] information establishing the factual innocence of the defendant" "has been turned over to the defendant," and it acknowledges the Government's "continuing duty to provide such information." App. to Pet. for Cert. 45a46a. At the same time it requires that the defendant "waiv[e] the right" to receive "impeachment information relating to any informants or other witnesses" as well as the right to receive information supporting any affirmative defense the defendant raises if the case goes to at 46a. Because Ruiz would not agree to this last-mentioned waiver, the prosecutors withdrew their bargaining offer. The Government then indicted Ruiz for unlawful drug possession. And despite 626 the absence of any agreement, Ruiz ultimately pleaded guilty. At sentencing, Ruiz asked the judge to grant her the same two-level downward departure that the Government would have recommended had she accepted the "fast track" agreement. The Government opposed her request, and the District Court denied it, imposing a standard Guideline sentence 241 F.3d, at Relying on 18 U.S. C. 3742, see infra, at 627, 628-629, Ruiz appealed her sentence to the United Court of Appeals for the Ninth Circuit. The Ninth Circuit vacated the District Court's sentencing determination. The Ninth Circuit pointed out that the Constitution requires prosecutors to make certain impeachment information available to a defendant before It decided that this obligation entitles defendants to receive that same information before they enter into a plea agreement. The Ninth Circuit also decided that the Constitution prohibits defendants from waiving their right to that information. And it held that the prosecutors' standard "fast track" plea agreement was unlawful because it insisted upon that waiver. The Ninth Circuit remanded the case so that the District Court could decide any related factual disputes and determine an appropriate remedy. The Government sought certiorari. It stressed what it considered serious adverse practical implications of the Ninth Circuit's constitutional holding. And it added that the holding is unique among courts of appeals. Pet. for Cert. 8. We granted the Government's petition. II At the outset, we note that a question of statutory jurisdiction potentially blocks our consideration of the Ninth Circuit's constitutional holding. The relevant statute says that a 627 "defendant may file a notice of appeal for review if the sentence "(1) was imposed in violation of law; "(2) was imposed as a result of an incorrect application of the sentencing guidelines; or "(3) is greater than [the Guideline] specified [sentence] ; or "(4) was imposed for an offense for which there is no sentencing guideline and is plainly unreasonable." 18 U.S. C. 3742(a). Every Circuit has held that this statute does not authorize a defendant to appeal a sentence where the ground for appeal consists of a claim that the district court abused its discretion in refusing to depart. See, e. g., United ; United ; United ; United ; United ; United ; United ; United ; United ; United ; United ; In re Sealed Case No. 98-31, The statute does, however, authorize an appeal from a sentence that "was imposed in violation of law." Two quite different theories might support appellate jurisdiction pursuant to that provision. First, as the Court of Appeals recognized, if the District Court's sentencing decision rested on a mistaken belief that it lacked the legal power to grant a departure, the quoted provision would apply. 241 F.3d, at 12, n. 2. Our reading of the record, however, convinces us that the District Judge correctly understood that he had such discretion but decided not to exercise it. We therefore reject 628 that basis for finding appellate jurisdiction. Second, if respondent's constitutional claim, discussed in Part III, infra, were sound, her sentence would have been "imposed in violation of law." Thus, if she had prevailed on the merits, her victory would also have confirmed the jurisdiction of the Court of Appeals. Although we ultimately conclude that respondent's sentence was not "imposed in violation of law" and therefore that 3742(a)(1) does not authorize an appeal in a case of this kind, it is familiar law that a federal court always has jurisdiction to determine its own jurisdiction. See United In order to make that determination, it was necessary for the Ninth Circuit to address the merits. We therefore hold that appellate jurisdiction was proper. III The constitutional question concerns a federal criminal defendant's waiver of the right to receive from prosecutors exculpatory impeachment materiala right that the Constitution provides as part of its basic "fair trial" guarantee. See U. S. Const., Amdts. 5, 6. See also ; United -113 ; ; When a defendant pleads guilty he or she, of course, forgoes not only a fair trial, but also other accompanying constitutional 629 guarantees. Given the seriousness of the matter, the Constitution insists, among other things, that the defendant enter a guilty plea that is "voluntary" and that the defendant must make related waivers "knowing[ly], intelligent[ly], [and] with sufficient awareness of the relevant circumstances and likely consequences." ; see also In this case, the Ninth Circuit in effect held that a guilty plea is not "voluntary" (and that the defendant could not, by pleading guilty, waive her right to a fair trial) unless the prosecutors first made the same disclosure of material impeachment information that the prosecutors would have had to make had the defendant insisted upon a We must decide whether the Constitution requires that preguilty plea disclosure of impeachment information. We conclude that it does not. First, impeachment information is special in relation to the fairness of a trial, not in respect to whether a plea is voluntary ("knowing," "intelligent," and "sufficient[ly] aware"). Of course, the more information the defendant has, the more aware he is of the likely consequences of a plea, waiver, or decision, and the wiser that decision will likely be. But the Constitution does not require the prosecutor to share all useful information with the defendant. And the law ordinarily considers a waiver knowing, intelligent, and sufficiently aware if the defendant fully understands the nature of the right and how it would likely apply in general in the circumstanceseven though the defendant may not know the specific detailed consequences of invoking it. A defendant, for example, may waive his right to remain silent, his 630 right to a jury trial, or his right to counsel even if the defendant does not know the specific questions the authorities intend to ask, who will likely serve on the jury, or the particular lawyer the State might otherwise provide. Cf. (19) It is particularly difficult to characterize impeachment information as critical information of which the defendant must always be aware prior to pleading guilty given the random way in which such information may, or may not, help a particular defendant. The degree of help that impeachment information can provide will depend upon the defendant's own independent knowledge of the prosecution's potential casea matter that the Constitution does not require prosecutors to disclose. Second, we have found no legal authority embodied either in this Court's past cases or in cases from other circuits that provides significant support for the Ninth Circuit's decision. To the contrary, this Court has found that the Constitution, in respect to a defendant's awareness of relevant circumstances, does not require complete knowledge of the relevant circumstances, but permits a court to accept a guilty plea, with its accompanying waiver of various constitutional rights, despite various forms of misapprehension under which a defendant might labor. See ; ; ; ; United v. Broce, ; It is difficult to distinguish, in terms of importance, (1) a defendant's ignorance of grounds for impeachment of potential witnesses at a possible future trial from (2) the varying forms of ignorance at issue in these cases. Third, due process considerations, the very considerations that led this Court to find trial-related rights to exculpatory and impeachment information in Brady and Giglio, argue against the existence of the "right" that the Ninth Circuit found here. This Court has said that due process considerations include not only (1) the nature of the private interest at stake, but also (2) the value of the additional safeguard, and (3) the adverse impact of the requirement upon the Government's interests. Here, as we have just pointed out, the added value of the Ninth Circuit's "right" to a defendant is often limited, for it depends upon the defendant's independent awareness of the details of the Government's case. And in any case, as the proposed plea agreement at issue here specifies, the Government will provide "any information establishing the factual innocence of the defendant" regardless. That fact, along with other guilty-plea safeguards, see Fed. Rule Crim. Proc. 11, diminishes the force of Ruiz's concern that, in the absence of impeachment information, innocent individuals, accused of crimes, will plead guilty. Cf. McCarthy v. United At the same time, a constitutional obligation to provide impeachment information during plea bargaining, prior to entry of a guilty plea, could seriously interfere with the Government's interest in securing those guilty pleas that are factually justified, desired by defendants, and help to secure the efficient administration of justice. The Ninth Circuit's rule risks premature disclosure of Government witness information, which, the Government tells us, could "disrupt ongoing 632 investigations" and expose prospective witnesses to serious harm. Brief for United 25. Cf. Amendments to Federal Rules of Criminal Procedure: Hearings before the Subcommittee on Criminal Justice of the House Committee on the Judiciary, 94th Cong., 1st Sess., 92 (1975) (statement of John C. Keeney, Acting Assistant Attorney General, Criminal Div., Dept. of Justice) (opposing mandated witness disclosure three days before trial because of documented instances of witness intimidation). And the careful tailoring that characterizes most legal Government witness disclosure requirements suggests recognition by both Congress and the Federal Rules Committees that such concerns are valid. See, e. g., 18 U.S. C. 3432 (witness list disclosure required in capital cases three days before trial with exceptions); 3500 (Government witness statements ordinarily subject to discovery only after testimony given); Fed. Rule Crim. Proc. (a)(2) (embodies limitations of 18 U.S. C. 3500). Compare 156 F. R. D. 460, 461-462 (congressional proposal to significantly broaden 3500) with 7 F. R. D. 221, 223, n. (judicial conference opposing congressional proposal). Consequently, the Ninth Circuit's requirement could force the Government to abandon its "general practice" of not "disclos[ing] to a defendant pleading guilty information that would reveal the identities of cooperating informants, undercover investigators, or other prospective witnesses." Brief for United 25. It could require the Government to devote substantially more resources to trial preparation prior to plea bargaining, thereby depriving the pleabargaining process of its main resource-saving advantages. Or it could lead the Government instead to abandon its heavy reliance upon plea bargaining in a vast number90% or moreof federal criminal cases. We cannot say that the Constitution's due process requirement demands so radical a change in the criminal justice process in order to achieve so comparatively small a constitutional benefit. *633 These considerations, taken together, lead us to conclude that the Constitution does not require the Government to disclose material impeachment evidence prior to entering a plea agreement with a criminal defendant. In addition, we note that the "fast track" plea agreement requires a defendant to waive her right to receive information the Government has regarding any "affirmative defense" she raises at App. to Pet. for Cert. 46a. We do not believe the Constitution here requires provision of this information to the defendant prior to plea bargainingfor most (though not all) of the reasons previously stated. That is to say, in the context of this agreement, the need for this information is more closely related to the fairness of a trial than to the voluntariness of the plea; the value in terms of the defendant's added awareness of relevant circumstances is ordinarily limited; yet the added burden imposed upon the Government by requiring its provision well in advance of trial (often before trial preparation begins) can be serious, thereby significantly interfering with the administration of the plea-bargaining process. For these reasons the judgment of the Court of Appeals for the Ninth Circuit is Reversed. Justice Thomas, concurring in the judgment.	1,855
Justice Thomas	concurring	false	United States v. Ruiz	2002-06-24	null	https://www.courtlistener.com/opinion/121166/united-states-v-ruiz/	https://www.courtlistener.com/api/rest/v3/clusters/121166/	2,002	2001-078	1	9	0	I agree with the Court that the Constitution does not require the Government to disclose either affirmative defense information or impeachment information relating to informants or other witnesses before entering into a binding plea agreement with a criminal defendant. The Court, however, suggests that the constitutional analysis turns in some part on the "degree of help" such information would provide to the defendant at the plea stage, see ante, at 630, 631, a distinction that is neither necessary nor accurate. To the extent that the Court is implicitly drawing a line based on a *634 flawed characterization about the usefulness of certain types of information, I can only concur in the judgment. The principle supporting Brady was "avoidance of an unfair trial to the accused." Brady v. Maryland, 373 U.S. 83, 87 (1963). That concern is not implicated at the plea stage regardless.	I agree with the Court that the Constitution does not require the Government to disclose either affirmative defense information or impeachment information relating to informants or other witnesses before entering into a binding plea agreement with a criminal defendant. The Court, however, suggests that the constitutional analysis turns in some part on the "degree of help" such information would provide to the defendant at the plea stage, see ante, at 630, 631, a distinction that is neither necessary nor accurate. To the extent that the Court is implicitly drawing a line based on a *634 flawed characterization about the usefulness of certain types of information, I can only concur in the judgment. The principle supporting Brady was "avoidance of an unfair trial to the accused." That concern is not implicated at the plea stage regardless.	1,856
Justice Rehnquist	majority	false	Sandin v. Conner	1995-06-19	null	https://www.courtlistener.com/opinion/117957/sandin-v-conner/	https://www.courtlistener.com/api/rest/v3/clusters/117957/	1,995	1994-080	1	5	4	We granted certiorari to reexamine the circumstances under which state prison regulations afford inmates a liberty interest protected by the Due Process Clause. I DeMont Conner was convicted of numerous state crimes, including murder, kidnaping, robbery, and burglary, for which he is currently serving an indeterminate sentence of 475 30 years to life in a Hawaii prison. He was confined in the Halawa Correctional Facility, a maximum security prison in central Oahu. In August 1987, a prison officer escorted him from his cell to the module program area. The officer subjected Conner to a strip search, complete with an inspection of the rectal area. Conner retorted with angry and foul language directed at the officer. Eleven days later he received notice that he had been charged with disciplinary infractions. The notice charged Conner with "high misconduct" for using physical interference to impair a correctional function, and "low moderate misconduct" for using abusive or obscene language and for harassing employees.[1] Conner appeared before an adjustment committee on August 28, 1987. The committee refused Conner's request to present witnesses at the hearing, stating that "[w]itnesses were unavailable due to move [sic] to the medium facility and being short staffed on the modules." App. to Pet. for Cert. A-67. At the conclusion of proceedings, the committee determined that Conner was guilty of the alleged misconduct. It sentenced him to 30 days' disciplinary segregation 476 in the Special Holding Unit[2] for the physical obstruction charge, and four hours segregation for each of the other two charges to be served concurrent with the 30 days. Id. , at A-66 to A-67. Conner's segregation began August 31, 1987, and ended September 29, 1987. Conner sought administrative review within 14 days of receiving the committee's decision. Haw. Admin. Rule § 17-201-20(a) (1983). Nine months later, the deputy administrator found the high misconduct charge unsupported and expunged Conner's disciplinary record with respect to that charge. App. 249. But before the deputy administrator decided the appeal, Conner had brought this suit against the adjustment committee chair and other prison officials in the United States District Court for the District of Hawaii based on Rev. Stat. § 1979, 42 U.S. C. § 1983. His amended complaint prayed for injunctive relief, declaratory relief, and damages for, among other things, a deprivation of procedural due process in connection with the disciplinary hearing. The District Court granted summary judgment in favor of the prison officials. The Court of Appeals for the Ninth Circuit reversed the judgment. Conner v. Sakai, 15 F.3d 1463 (1993). It concluded that Conner had a liberty interest in remaining free from disciplinary segregation and that there was a disputed question of fact with respect to whether Conner received all of the process due under this Court's pronouncement in Wolff v. McDonnell, 418 U.S. 539 (1974). 15 F.3d, at 1466. The Court of Appeals based its conclusion on a prison regulation 477 that instructs the committee to find guilt when a charge of misconduct is supported by substantial evidence. Haw. Admin. Rule § 17-201-18(b)(2) (1983).[3] The Court of Appeals reasoned from Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454 (1989), that the committee's duty to find guilt was nondiscretionary. From the language of the regulation, it drew a negative inference that the committee may not impose segregation if it does not find substantial evidence of misconduct. 15 F.3d, at 1466. It viewed this as a state-created liberty interest, and therefore held that respondent was entitled to call witnesses by virtue of our opinion in Wolff, supra. We granted the State's petition for certiorari, 513 U.S. 921 (1994), and now reverse. II Our due process analysis begins with Wolff. There, Nebraska inmates challenged the decision of prison officials to revoke good time credits without adequate procedures. 418 U.S., at 553. Inmates earned good time credits under a state statute that bestowed mandatory sentence reductions for good behavior, id. , at 546, n. 6, revocable only for "`flagrant or serious misconduct,' " id. , at 545, n. 5 (citation omitted). We held that the Due Process Clause itself does not create a liberty interest in credit for good behavior, but that the statutory provision created a liberty interest in a "shortened prison sentence" which resulted from good time 478 credits, credits which were revocable only if the prisoner was guilty of serious misconduct. Id., at 557. The Court characterized this liberty interest as one of "real substance" ibid. , and articulated minimum procedures necessary to reach a "mutual accommodation between institutional needs and objectives and the provisions of the Constitution," id., at 556. Much of Wolff `s contribution to the landscape of prisoners' due process derived not from its description of liberty interests, but rather from its intricate balancing of prison management concerns with prisoners' liberty in determining the amount of process due. Its short discussion of the definition of a liberty interest, Wolff, supra, at 556-558, led to a more thorough treatment of the issue in Meachum v. Fano, 427 U.S. 215 (1976). Inmates in Meachum sought injunctive relief, declaratory relief, and damages by reason of transfers from a Massachusetts medium security prison to a maximum security facility with substantially less favorable conditions. The transfers were ordered in the aftermath of arson incidents for which the transferred inmates were thought to be responsible, and did not entail a loss of good time credits or any period of disciplinary confinement. Id. , at 222. The Court began with the proposition that the Due Process Clause does not protect every change in the conditions of confinement having a substantial adverse impact on the prisoner. Id. , at 224. It then held that the Due Process Clause did not itself create a liberty interest in prisoners to be free from intrastate prison transfers. Id., at 225. It reasoned that transfer to a maximum security facility, albeit one with more burdensome conditions, was "within the normal limits or range of custody which the conviction has authorized the State to impose." Ibid.; see also Montanye v. Haymes, 427 U.S. 236, 242 (1976). The Court distinguished Wolff by noting that there the protected liberty interest in good time credit had been created by state law; here no comparable Massachusetts law stripped officials of the discretion to transfer prisoners to alternative 479 facilities "for whatever reason or for no reason at all." Meachum, supra, at 228.[4] Shortly after Meachum, the Court embarked on a different approach to defining state-created liberty interests. Because dictum in Meachum distinguished Wolff by focusing on whether state action was mandatory or discretionary, the Court in later cases laid ever greater emphasis on this somewhat mechanical dichotomy. Greenholtz v. Inmates of Neb. Penal and Correctional Complex, 442 U.S. 1 (1979), foreshadowed the methodology that would come to full fruition in Hewitt v. Helms, 459 U.S. 460 (1983). The Greenholtz inmates alleged that they had been unconstitutionally denied parole. Their claim centered on a state statute that set the date for discretionary parole at the time the minimum term of imprisonment less good time credits expired. The statute ordered release of a prisoner at that time, unless one of four specific conditions were shown. 442 U.S., at 11. The Court apparently accepted the inmates' argument that the word "shall" in the statute created a legitimate expectation of release absent the requisite finding that one of the justifications for deferral existed, since the Court concluded that some measure of constitutional protection was due. Nevertheless, the State ultimately prevailed because the minimal process it had awarded the prisoners was deemed sufficient under the Fourteenth Amendment. 480 The Court made explicit in Hewitt what was implicit in Greenholtz. In evaluating the claims of inmates who had been confined to administrative segregation, it first rejected the inmates' claim of a right to remain in the general population as protected by the Due Process Clause on the authority of Meachum, Montanye, and Vitek. The Due Process Clause standing alone confers no liberty interest in freedom from state action taken "`within the sentence imposed.'" 459 U.S., at 468. It then concluded that the transfer to less amenable quarters for nonpunitive reasons was "ordinarily contemplated by a prison sentence." Ibid. Examination of the possibility that the State had created a liberty interest by virtue of its prison regulations followed. Instead of looking to whether the State created an interest of "real substance" comparable to the good time credit scheme of Wolff, the Court asked whether the State had gone beyond issuing mere procedural guidelines and had used "language of an unmistakably mandatory character" such that the incursion on liberty would not occur "absent specified substantive predicates." Id., at 471-472. Finding such mandatory directives in the regulations before it, the Court decided that the State had created a protected liberty interest. It nevertheless, held, as it had in Greenholtz, that the full panoply of procedures conferred in Wolff were unnecessary to safeguard the inmates' interest and, if imposed, would undermine the prison's management objectives. As this methodology took hold, no longer did inmates need to rely on a showing that they had suffered a "`grievous loss' " of liberty retained even after sentenced to terms of imprisonment. Morrissey v. Brewer, 408 U.S. 471, 481 (1972) (citation omitted). For the Court had ceased to examine the "nature" of the interest with respect to interests allegedly created by the State. See ibid.; Board of Regents of State Colleges v. Roth, 408 U.S. 564, 571 (1972). In a series of cases since Hewitt, the Court has wrestled with the language of intricate, often rather routine prison guidelines 481 to determine whether mandatory language and substantive predicates created an enforceable expectation that the State would produce a particular outcome with respect to the prisoner's conditions of confinement. In Olim v. Wakinekona, 461 U.S. 238 (1983), the claimants identified prison regulations that required a particular kind of hearing before the prison administrator could, in his discretion, effect an interstate transfer to another prison. Parsing the language of the regulation led the Court to hold that the discretionary nature of the transfer decision negated any state-created liberty interest. Id. , at 249-250. Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454 (1989), dealt with regulations governing the visitation privileges of inmates. Asserting that a regulation created an absolute right to visitors absent a finding of certain substantive predicates, the inmates sought review of the adequacy of the procedures. As in Wakinekona, the Court determined the regulation left visitor exclusion to the discretion of the officials, and refused to elevate such expectations to the level of a liberty interest. 490 U.S., at 464-465. By shifting the focus of the liberty interest inquiry to one based on the language of a particular regulation, and not the nature of the deprivation, the Court encouraged prisoners to comb regulations in search of mandatory language on which to base entitlements to various state-conferred privileges. Courts have, in response, and not altogether illogically, drawn negative inferences from mandatory language in the text of prison regulations. The Court of Appeals' approach in this case is typical: It inferred from the mandatory directive that a finding of guilt "shall" be imposed under certain conditions the conclusion that the absence of such conditions prevents a finding of guilt. Such a conclusion may be entirely sensible in the ordinary task of construing a statute defining rights and remedies available to the general public. It is a good deal less sensible in the case of a prison regulation primarily designed to 482 guide correctional officials in the administration of a prison. Not only are such regulations not designed to confer rights on inmates, but the result of the negative implication jurisprudence is not to require the prison officials to follow the negative implication drawn from the regulation, but is instead to attach procedural protections that may be of quite a different nature. Here, for example, the Court of Appeals did not hold that a finding of guilt could not be made in the absence of substantial evidence. Instead, it held that the "liberty interest" created by the regulation entitled the inmate to the procedural protections set forth in Wolff. Hewitt has produced at least two undesirable effects. First, it creates disincentives for States to codify prison management procedures in the interest of uniform treatment. Prison administrators need be concerned with the safety of the staff and inmate population. Ensuring that welfare often leads prison administrators to curb the discretion of staff on the front line who daily encounter prisoners hostile to the authoritarian structure of the prison environment. Such guidelines are not set forth solely to benefit the prisoner. They also aspire to instruct subordinate employees how to exercise discretion vested by the State in the warden, and to confine the authority of prison personnel in order to avoid widely different treatment of similar incidents. The approach embraced by Hewitt discourages this desirable development: States may avoid creation of "liberty" interests by having scarcely any regulations, or by conferring standardless discretion on correctional personnel. Second, the Hewitt approach has led to the involvement of federal courts in the day-to-day management of prisons, often squandering judicial resources with little offsetting benefit to anyone. In so doing, it has run counter to the view expressed in several of our cases that federal courts ought to afford appropriate deference and flexibility to state officials trying to manage a volatile environment. Wolff, 418 U. S., at 561-563; Hewitt, 459 U. S., at 470-471; Jones v. North Carolina Prisoners' Labor Union, Inc., 433 U.S. 119, 483 125 (1977). Such flexibility is especially warranted in the fine-tuning of the ordinary incidents of prison life, a common subject of prisoner claims since Hewitt. See, e. g., Klos v. Haskell, 48 F.3d 81, 82 (CA2 1995) (claiming liberty interest in right to participate in "shock program"a type of boot camp for inmates); Segal v. Biller, No. 94-35448, 1994 U. S. App. LEXIS 30628 (CA9, Oct. 31, 1994) (unpublished) (claiming liberty interest in a waiver of the travel limit imposed on prison furloughs); Burgin v. Nix, 899 F.2d 733, 735 (CA8 1990) (claiming liberty interest in receiving a tray lunch rather than a sack lunch); Spruytte v. Walters, 753 F.2d 498, 506-508 (CA6 1985) (finding liberty interest in receiving a paperback dictionary due to a rule that states a prisoner "`may receive any book . . . which does not present a threat to the order or security of the institution' ") (citation omitted); Lyon v. Farrier, 727 F.2d 766, 768-769 (CA8 1984) (claiming liberty interest in freedom from transfer to a smaller cell without electrical outlets for televisions and liberty interest in a prison job); United States v. Michigan, 680 F. Supp. 270, 277 (WD Mich. 1988) (finding liberty interest in not being placed on food loaf diet). In light of the above discussion, we believe that the search for a negative implication from mandatory language in prisoner regulations has strayed from the real concerns undergirding the liberty protected by the Due Process Clause. The time has come to return to the due process principles we believe were correctly established and applied in Wolff and Meachum.[5] Following Wolff, we recognize that States 484 may under certain circumstances create liberty interests which are protected by the Due Process Clause. See also Board of Pardons v. Allen, 482 U.S. 369 (1987). But these interests will be generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, see, e. g., Vitek, 445 U. S., at 493 (transfer to mental hospital), and Washington, 494 U. S., at 221-222 (involuntary administration of psychotropic drugs), nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life. Conner asserts, incorrectly, that any state action taken for a punitive reason encroaches upon a liberty interest under the Due Process Clause even in the absence of any state regulation. Neither Bell v. Wolfish, 441 U.S. 520 (1979), nor Ingraham v. Wright, 430 U.S. 651 (1977), requires such a rule. Bell dealt with the interests of pretrial detainees and not convicted prisoners. See also United States v. Salerno, 481 U.S. 739, 747 (1987) (distinguishing between "impermissible punishment" and "permissible regulation" of pretrial detainees). The Court in Bell correctly noted that a detainee "may not be punished prior to an adjudication of guilt in accordance with due process of law." 441 U.S., at 535. The Court expressed concern that a State would attempt to punish a detainee for the crime for which he was indicted via preconviction holding conditions. Id. , at 539. Such a course would improperly extend the legitimate reasons for which such persons are detainedto ensure their presence at trial.[6] 485 The same distinction applies to Ingraham, which addressed the rights of schoolchildren to remain free from arbitrary corporal punishment. The Court noted that the Due Process Clause historically encompassed the notion that the State could not "physically punish an individual except in accordance with due process of law" and so found schoolchildren sheltered. 430 U.S., at 674. Although children sent to public school are lawfully confined to the classroom, arbitrary corporal punishment represents an invasion of personal security to which their parents do not consent when entrusting the educational mission to the State. The punishment of incarcerated prisoners, on the other hand, serves different aims than those found invalid in Bell and Ingraham. The process does not impose retribution in lieu of a valid conviction, nor does it maintain physical control over free citizens forced by law to subject themselves to state control over the educational mission. It effectuates prison management and prisoner rehabilitative goals. See State v. Alvey, 67 Haw. 49, 55, 678 P.2d 5, 9 (1984). Admittedly, prisoners do not shed all constitutional rights at the prison gate, Wolff, 418 U. S., at 555, but "`[l]awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system.' " Jones, 433 U. S., at 125, quoting Price v. Johnston, 334 U.S. 266, 285 (1948). Discipline by prison officials in response to a wide range of misconduct falls within the expected perimeters of the sentence imposed by a court of law. This case, though concededly punitive, does not present a dramatic departure from the basic conditions of Conner's indeterminate sentence. Although Conner points to dicta in cases implying that solitary confinement automatically triggers due process protection, Wolff, supra, at 571, n. 19; Baxter v. Palmigiano, 425 U.S. 308, 323 (1976) (assuming without 486 deciding that freedom from punitive segregation for "`serious misconduct' " implicates a liberty interest, holding only that the prisoner has no right to counsel) (citation omitted), this Court has not had the opportunity to address in an argued case the question whether disciplinary confinement of inmates itself implicates constitutional liberty interests. We hold that Conner's discipline in segregated confinement did not present the type of atypical, significant deprivation in which a State might conceivably create a liberty interest. The record shows that, at the time of Conner's punishment, disciplinary segregation, with insignificant exceptions, mirrored those conditions imposed upon inmates in administrative segregation and protective custody.[7] We note also that the State expunged Conner's disciplinary record with respect to the "high misconduct" charge nine months after Conner served time in segregation. Thus, Conner's confinement did not exceed similar, but totally discretionary, confinement in either duration or degree of restriction. Indeed, the conditions at Halawa involve significant amounts of "lockdown time" even for inmates in the general population.[8] Based on a comparison between inmates inside and outside disciplinary segregation, the State's actions in placing him there for 30 days did not work a major disruption in his environment.[9] 487 Nor does Conner's situation present a case where the State's action will inevitably affect the duration of his sentence. Nothing in Hawaii's code requires the parole board to deny parole in the face of a misconduct record or to grant parole in its absence, Haw. Rev. Stat. §§ 353-68, 353-69 (1985), even though misconduct is by regulation a relevant consideration, Haw. Admin. Rule § 23-700-33(b) (effective Aug. 1992). The decision to release a prisoner rests on a myriad of considerations. And, the prisoner is afforded procedural protection at his parole hearing in order to explain the circumstances behind his misconduct record. Haw. Admin. Rule §§ 23-700-31(a), 23-700-35(c), 23-700-36 (1983). The chance that a finding of misconduct will alter the balance is simply too attenuated to invoke the procedural guarantees of the Due Process Clause. The Court rejected a similar claim in Meachum, 427 U. S., at 229, n. 8 (declining to afford relief on the basis that petitioner's transfer record might affect his future confinement and possibility of parole).[10] We hold, therefore, that neither the Hawaii prison regulation in question, nor the Due Process Clause itself, afforded Conner a protected liberty interest that would entitle him to the procedural protections set forth in Wolff. The regime to which he was subjected as a result of the misconduct hearing was within the range of confinement to be normally expected for one serving an indeterminate term of 30 years to life.[11] 488 The judgment of the Court of Appeals is accordingly Reversed.	We granted certiorari to reexamine the circumstances under which state prison regulations afford inmates a liberty interest protected by the Due Process Clause I DeMont Conner was convicted of numerous state crimes, including murder, kidnaping, robbery, and burglary, for which he is currently serving an indeterminate sentence of 475 30 years to life in a Hawaii prison He was confined in the Halawa Correctional Facility, a maximum security prison in central Oahu In August 187, a prison officer escorted him from his cell to the module program area The officer subjected Conner to a strip search, complete with an inspection of the rectal area Conner retorted with angry and foul language directed at the officer Eleven days later he received notice that he had been charged with disciplinary infractions The notice charged Conner with "high misconduct" for using physical interference to impair a correctional function, and "low moderate misconduct" for using abusive or obscene language and for harassing employees[1] Conner appeared before an adjustment committee on August 28, 187 The committee refused Conner's request to present witnesses at the hearing, stating that "[w]itnesses were unavailable due to move [sic] to the medium facility and being short staffed on the modules" App to Pet for Cert A-67 At the conclusion of proceedings, the committee determined that Conner was guilty of the alleged misconduct It sentenced him to 30 days' disciplinary segregation 476 in the Special Holding Unit[2] for the physical obstruction charge, and four hours segregation for each of the other two charges to be served concurrent with the 30 days at A-66 to A-67 Conner's segregation began August 31, 187, and ended September 2, 187 Conner sought administrative review within 14 days of receiving the committee's decision Haw Admin Rule 17-201-20(a) Nine months later, the deputy administrator found the high misconduct charge unsupported and expunged Conner's disciplinary record with respect to that charge App 24 But before the deputy administrator decided the appeal, Conner had brought this suit against the adjustment committee chair and other prison officials in the United States District Court for the District of Hawaii based on Rev Stat 17, 42 US C 183 His amended complaint prayed for injunctive relief, declaratory relief, and damages for, among other things, a deprivation of procedural due process in connection with the disciplinary hearing The District Court granted summary judgment in favor of the prison officials The Court of Appeals for the Ninth Circuit reversed the judgment It concluded that Conner had a liberty interest in remaining free from disciplinary segregation and that there was a disputed question of fact with respect to whether Conner received all of the process due under this Court's pronouncement in The Court of Appeals based its conclusion on a prison regulation 477 that instructs the committee to find guilt when a charge of misconduct is supported by substantial evidence Haw Admin Rule 17-201-18(b)(2) [3] The Court of Appeals reasoned from Kentucky Dept of Corrections v US 454 that the committee's duty to find guilt was nondiscretionary From the language of the regulation, it drew a negative inference that the committee may not impose segregation if it does not find substantial evidence of misconduct It viewed this as a state-created liberty interest, and therefore held that respondent was entitled to call witnesses by virtue of our opinion in supra We granted the State's petition for certiorari, 513 US 21 and now reverse II Our due process analysis begins with There, Nebraska inmates challenged the decision of prison officials to revoke good time credits without adequate procedures 418 US, at 3 Inmates earned good time credits under a state statute that bestowed mandatory sentence reductions for good behavior, id at 546, n 6, revocable only for "`flagrant or serious misconduct,' " id at 545, n 5 We held that the Due Process Clause itself does not create a liberty interest in credit for good behavior, but that the statutory provision created a liberty interest in a "shortened prison sentence" which resulted from good time 478 credits, credits which were revocable only if the prisoner was guilty of serious misconduct The Court characterized this liberty interest as one of "real substance" ibid and articulated minimum procedures necessary to reach a "mutual accommodation between institutional needs and objectives and the provisions of the Constitution," id, Much of `s contribution to the landscape of prisoners' due process derived not from its description of liberty interests, but rather from its intricate balancing of prison management concerns with prisoners' liberty in determining the amount of process due Its short discussion of the definition of a liberty interest, -8, led to a more thorough treatment of the issue in v Fano, 427 US 215 Inmates in sought injunctive relief, declaratory relief, and damages by reason of transfers from a Massachusetts medium security prison to a maximum security facility with substantially less favorable conditions The transfers were ordered in the aftermath of arson incidents for which the transferred inmates were thought to be responsible, and did not entail a loss of good time credits or any period of disciplinary confinement at 222 The Court began with the proposition that the Due Process Clause does not protect every change in the conditions of confinement having a substantial adverse impact on the prisoner at 224 It then held that the Due Process Clause did not itself create a liberty interest in prisoners to be free from intrastate prison transfers It reasoned that transfer to a maximum security facility, albeit one with more burdensome conditions, was "within the normal limits or range of custody which the conviction has authorized the State to impose" Ibid; see also Montanye v Haymes, 427 US 236, The Court distinguished by noting that there the protected liberty interest in good time credit had been created by state law; here no comparable Massachusetts law stripped officials of the discretion to transfer prisoners to alternative 47 facilities "for whatever reason or for no reason at all" [4] Shortly after the Court embarked on a different approach to defining state-created liberty interests Because dictum in distinguished by focusing on whether state action was mandatory or discretionary, the Court in later cases laid ever greater emphasis on this somewhat mechanical dichotomy Greenholtz v Inmates of Neb Penal and Correctional Complex, 442 US 1 foreshadowed the methodology that would come to full fruition in v Helms, 45 US 460 The Greenholtz inmates alleged that they had been unconstitutionally denied parole Their claim centered on a state statute that set the date for discretionary parole at the time the minimum term of imprisonment less good time credits expired The statute ordered release of a prisoner at that time, unless one of four specific conditions were shown 442 US, at 11 The Court apparently accepted the inmates' argument that the word "shall" in the statute created a legitimate expectation of release absent the requisite finding that one of the justifications for deferral existed, since the Court concluded that some measure of constitutional protection was due Nevertheless, the State ultimately prevailed because the minimal process it had awarded the prisoners was deemed sufficient under the Fourteenth Amendment 480 The Court made explicit in what was implicit in Greenholtz In evaluating the claims of inmates who had been confined to administrative segregation, it first rejected the inmates' claim of a right to remain in the general population as protected by the Due Process Clause on the authority of Montanye, and The Due Process Clause standing alone confers no liberty interest in freedom from state action taken "`within the sentence imposed'" 45 US, at 468 It then concluded that the transfer to less amenable quarters for nonpunitive reasons was "ordinarily contemplated by a prison sentence" Ibid Examination of the possibility that the State had created a liberty interest by virtue of its prison regulations followed Instead of looking to whether the State created an interest of "real substance" comparable to the good time credit scheme of the Court asked whether the State had gone beyond issuing mere procedural guidelines and had used "language of an unmistakably mandatory character" such that the incursion on liberty would not occur "absent specified substantive predicates" Finding such mandatory directives in the regulations before it, the Court decided that the State had created a protected liberty interest It nevertheless, held, as it had in Greenholtz, that the full panoply of procedures conferred in were unnecessary to safeguard the inmates' interest and, if imposed, would undermine the prison's management objectives As this methodology took hold, no longer did inmates need to rely on a showing that they had suffered a "`grievous loss' " of liberty retained even after sentenced to terms of imprisonment Morrissey v Brewer, 408 US 471, For the Court had ceased to examine the "nature" of the interest with respect to interests allegedly created by the State See ibid; Board of Regents of State Colleges v Roth, 408 US 564, In a series of cases since the Court has wrestled with the language of intricate, often rather routine prison guidelines * to determine whether mandatory language and substantive predicates created an enforceable expectation that the State would produce a particular outcome with respect to the prisoner's conditions of confinement In Olim v Wakinekona, 461 US 238 the claimants identified prison regulations that required a particular kind of hearing before the prison administrator could, in his discretion, effect an interstate transfer to another prison Parsing the language of the regulation led the Court to hold that the discretionary nature of the transfer decision negated any state-created liberty interest at 24-250 Kentucky Dept of Corrections v US 454 dealt with regulations governing the visitation privileges of inmates Asserting that a regulation created an absolute right to visitors absent a finding of certain substantive predicates, the inmates sought review of the adequacy of the procedures As in Wakinekona, the Court determined the regulation left visitor exclusion to the discretion of the officials, and refused to elevate such expectations to the level of a liberty interest 40 US, at 464-465 By shifting the focus of the liberty interest inquiry to one based on the language of a particular regulation, and not the nature of the deprivation, the Court encouraged prisoners to comb regulations in search of mandatory language on which to base entitlements to various state-conferred privileges Courts have, in response, and not altogether illogically, drawn negative inferences from mandatory language in the text of prison regulations The Court of Appeals' approach in this case is typical: It inferred from the mandatory directive that a finding of guilt "shall" be imposed under certain conditions the conclusion that the absence of such conditions prevents a finding of guilt Such a conclusion may be entirely sensible in the ordinary task of construing a statute defining rights and remedies available to the general public It is a good deal less sensible in the case of a prison regulation primarily designed to 4 guide correctional officials in the administration of a prison Not only are such regulations not designed to confer rights on inmates, but the result of the negative implication jurisprudence is not to require the prison officials to follow the negative implication drawn from the regulation, but is instead to attach procedural protections that may be of quite a different nature Here, for example, the Court of Appeals did not hold that a finding of guilt could not be made in the absence of substantial evidence Instead, it held that the "liberty interest" created by the regulation entitled the inmate to the procedural protections set forth in has produced at least two undesirable effects First, it creates disincentives for States to codify prison management procedures in the interest of uniform treatment Prison administrators need be concerned with the safety of the staff and inmate population Ensuring that welfare often leads prison administrators to curb the discretion of staff on the front line who daily encounter prisoners hostile to the authoritarian structure of the prison environment Such guidelines are not set forth solely to benefit the prisoner They also aspire to instruct subordinate employees how to exercise discretion vested by the State in the warden, and to confine the authority of prison personnel in order to avoid widely different treatment of similar incidents The approach embraced by discourages this desirable development: States may avoid creation of "liberty" interests by having scarcely any regulations, or by conferring standardless discretion on correctional personnel Second, the approach has led to the involvement of federal courts in the day-to-day management of prisons, often squandering judicial resources with little offsetting benefit to anyone In so doing, it has run counter to the view expressed in several of our cases that federal courts ought to afford appropriate deference and flexibility to state officials trying to manage a volatile environment 418 U S, at 561-563; 45 U S, at 470-471; v North Carolina Prisoners' Labor Union, Inc, 433 US 11, Such flexibility is especially warranted in the fine-tuning of the ordinary incidents of prison life, a common subject of prisoner claims since See, e g, Klos v Haskell, 48 F3d 81, ; Segal v Biller, No 4-35448, 14 U S App LEXIS 30628 (unpublished) (claiming liberty interest in a waiver of the travel limit imposed on prison furloughs); Burgin v Nix, 8 F2d 733, ; Spruytte v Walters, 753 F2d 48, (finding liberty interest in receiving a paperback dictionary due to a rule that states a prisoner "`may receive any book which does not present a threat to the order or security of the institution' ") ; Lyon v Farrier, 727 F2d 766, ; United States v Michigan, 680 F Supp 270, In light of the above discussion, we believe that the search for a negative implication from mandatory language in prisoner regulations has strayed from the real concerns undergirding the liberty protected by the Due Process Clause The time has come to return to the due process principles we believe were correctly established and applied in and [5] Following we recognize that States 484 may under certain circumstances create liberty interests which are protected by the Due Process Clause See also Board of Pardons v Allen, 4 US 36 But these interests will be generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, see, e g, 445 U S, at 43 and 44 U S, at 221-222 nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life Conner asserts, incorrectly, that any state action taken for a punitive reason encroaches upon a liberty interest under the Due Process Clause even in the absence of any state regulation Neither Bell v Wolfish, 441 US 520 nor Ingraham v Wright, 430 US 651 requires such a rule Bell dealt with the interests of pretrial detainees and not convicted prisoners See also United States v Salerno, US 73, The Court in Bell correctly noted that a detainee "may not be punished prior to an adjudication of guilt in accordance with due process of law" 441 US, at 535 The Court expressed concern that a State would attempt to punish a detainee for the crime for which he was indicted via preconviction holding conditions at 53 Such a course would improperly extend the legitimate reasons for which such persons are detainedto ensure their presence at trial[6] 485 The same distinction applies to Ingraham, which addressed the rights of schoolchildren to remain free from arbitrary corporal punishment The Court noted that the Due Process Clause historically encompassed the notion that the State could not "physically punish an individual except in accordance with due process of law" and so found schoolchildren sheltered 430 US, at 674 Although children sent to public school are lawfully confined to the classroom, arbitrary corporal punishment represents an invasion of personal security to which their parents do not consent when entrusting the educational mission to the State The punishment of incarcerated prisoners, on the other hand, serves different aims than those found invalid in Bell and Ingraham The process does not impose retribution in lieu of a valid conviction, nor does it maintain physical control over free citizens forced by law to subject themselves to state control over the educational mission It effectuates prison management and prisoner rehabilitative goals See State v Alvey, 67 Haw 4, 678 P2d 5, Admittedly, prisoners do not shed all constitutional rights at the prison gate, 418 U S, at 5, but "`[l]awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system' " 433 U S, at 125, quoting Price v Johnston, 334 US 266, (148) Discipline by prison officials in response to a wide range of misconduct falls within the expected perimeters of the sentence imposed by a court of law This case, though concededly punitive, does not present a dramatic departure from the basic conditions of Conner's indeterminate sentence Although Conner points to dicta in cases implying that solitary confinement automatically triggers due process protection, at n 1; Baxter v Palmigiano, 425 US 308, this Court has not had the opportunity to address in an argued case the question whether disciplinary confinement of inmates itself implicates constitutional liberty interests We hold that Conner's discipline in segregated confinement did not present the type of atypical, significant deprivation in which a State might conceivably create a liberty interest The record shows that, at the time of Conner's punishment, disciplinary segregation, with insignificant exceptions, mirrored those conditions imposed upon inmates in administrative segregation and protective custody[7] We note also that the State expunged Conner's disciplinary record with respect to the "high misconduct" charge nine months after Conner served time in segregation Thus, Conner's confinement did not exceed similar, but totally discretionary, confinement in either duration or degree of restriction Indeed, the conditions at Halawa involve significant amounts of "lockdown time" even for inmates in the general population[8] Based on a comparison between inmates inside and outside disciplinary segregation, the State's actions in placing him there for 30 days did not work a major disruption in his environment[] 487 Nor does Conner's situation present a case where the State's action will inevitably affect the duration of his sentence Nothing in Hawaii's code requires the parole board to deny parole in the face of a misconduct record or to grant parole in its absence, Haw Rev Stat 353-68, 353-6 even though misconduct is by regulation a relevant consideration, Haw Admin Rule 23-700-33(b) (effective Aug 12) The decision to release a prisoner rests on a myriad of considerations And, the prisoner is afforded procedural protection at his parole hearing in order to explain the circumstances behind his misconduct record Haw Admin Rule 23-700-31(a), 23-700-35(c), 23-700-36 The chance that a finding of misconduct will alter the balance is simply too attenuated to invoke the procedural guarantees of the Due Process Clause The Court rejected a similar claim in 427 U S, at 22, n 8 [10] We hold, therefore, that neither the Hawaii prison regulation in question, nor the Due Process Clause itself, afforded Conner a protected liberty interest that would entitle him to the procedural protections set forth in The regime to which he was subjected as a result of the misconduct hearing was within the range of confinement to be normally expected for one serving an indeterminate term of 30 years to life[11] *488 The judgment of the Court of Appeals is accordingly Reversed	1,857
Justice Ginsburg	dissenting	false	Sandin v. Conner	1995-06-19	null	https://www.courtlistener.com/opinion/117957/sandin-v-conner/	https://www.courtlistener.com/api/rest/v3/clusters/117957/	1,995	1994-080	1	5	4	Respondent DeMont Conner is a prisoner in a maximumsecurity Hawaii prison. After Conner reacted angrily to a strip search, a misconduct report charged him with obstructing the performance of a correctional officer's duties, using abusive language when talking to a staff member, and harassing a staff member. Conner received notice of the charges and had an opportunity, personally, to answer them. However, the disciplinary committee denied his request to call as witnesses staff members he said would attest to his innocence. Conner contested the misconduct charges, but, according to the report of the disciplinary committee, he admitted his hesitation to follow orders and his use of profanity during the search. Based on Conner's statement to the committee, and on written statements submitted by the officer who conducted the search and his supervisor, the committee found Conner guilty of all charges. Sentenced to 30 days in the prison's segregation unit, Conner pursued an administrative appeal, which ultimately resulted in reversal of the obstruction conviction. Unlike the Court, I conclude that Conner had a liberty interest, protected by the Fourteenth Amendment's Due Process Clause, in avoiding the disciplinary confinement he endured. As Justice Breyer details, Conner's prison punishment effected a severe alteration in the conditions of his incarceration. See post, at 494. Disciplinary confinement 489 as punishment for "high misconduct" not only deprives prisoners of privileges for protracted periods; unlike administrative segregation and protective custody, disciplinary confinement also stigmatizes them and diminishes parole prospects. Those immediate and lingering consequences should suffice to qualify such confinement as liberty depriving for purposes of Due Process Clause protection. See Meachum v. Fano, 427 U.S. 215, 234-235 (1976) (Stevens, J., dissenting).[1] I see the Due Process Clause itself, not Hawaii's prison code, as the wellspring of the protection due Conner. Deriving protected liberty interests from mandatory language in local prison codes would make of the fundamental right something more in certain States, something less in others. Liberty that may vary from Ossining, New York, to San Quentin, California, does not resemble the "Liberty" enshrined among "unalienable Rights" with which all persons are "endowed by their Creator." Declaration of Independence; see Meachum, 427 U. S., at 230 (Stevens, J., dissenting) ("[T]he Due Process Clause protects [the unalienable liberty recognized in the Declaration of Independence] rather 490 than the particular rights or privileges conferred by specific laws or regulations.").[2] Deriving the prisoner's due process right from the code for his prison, moreover, yields this practical anomaly: a State that scarcely attempts to control the behavior of its prison guards may, for that very laxity, escape constitutional accountability; a State that tightly cabins the discretion of its prison workers may, for that attentiveness, become vulnerable to constitutional claims. An incentive for ruleless prison management disserves the State's penological goals and jeopardizes the welfare of prisoners. To fit the liberty recognized in our fundamental instrument of government, the process due by reason of the Constitution similarly should not depend on the particularities of the local prison's code. Rather, the basic, universal requirements are notice of the acts of misconduct prison officials say the inmate committed, and an opportunity to respond to the charges before a trustworthy decisionmaker. See generally Friendly, "Some Kind of Hearing," 123 U. Pa. L. Rev. 1267, 1278-1281 (1975) (an unbiased tribunal, notice of the proposed government action and the grounds asserted for it, and an opportunity to present reasons why the proposed action should not be taken are fundamental; additional safeguards depend on the importance of the private interest, the utility of the particular safeguards, and the burden of affording them). 491 For the reasons Justice Breyer cogently presents, see post, at 504, a return of this case to the District Court would be unavoidable if it were recognized that Conner was deprived of liberty within the meaning of the Due Process Clause. But upon such a return, a renewed motion for summary judgment would be in order, for the record, as currently composed, does not show that Conner was denied any procedural protection warranted in his case. In particular, a call for witnesses is properly refused when the projected testimony is not relevant to the matter in controversy. See Wolff v. McDonnell, 418 U.S. 539, 566 (1974) (justifications for a prison tribunal's refusing to hear witnesses are "irrelevance, lack of necessity, [and] the hazards [to institutional safety or correctional goals] presented in individual cases"). Unless Conner were to demonstrate, in face of the disciplinary committee's stated reliance on his own admissions, that an issue of material fact is genuinely in controversy, see Fed. Rules Civ. Proc. 56(c), (e), his due process claim would fail. * * Because I conclude that Conner was deprived of liberty within the meaning of the Due Process Clause, I dissent from the judgment of the Court. I would return the case for a precisely focused determination whether Conner received the process that was indeed due.	Respondent DeMont Conner is a prisoner in a maximumsecurity Hawaii prison. After Conner reacted angrily to a strip search, a misconduct report charged him with obstructing the performance of a correctional officer's duties, using abusive language when talking to a staff member, and harassing a staff member. Conner received notice of the charges and had an opportunity, personally, to answer them. However, the disciplinary committee denied his request to call as witnesses staff members he said would attest to his innocence. Conner contested the misconduct charges, but, according to the report of the disciplinary committee, he admitted his hesitation to follow orders and his use of profanity during the search. Based on Conner's statement to the committee, and on written statements submitted by the officer who conducted the search and his supervisor, the committee found Conner guilty of all charges. Sentenced to 30 days in the prison's segregation unit, Conner pursued an administrative appeal, which ultimately resulted in reversal of the obstruction conviction. Unlike the Court, I conclude that Conner had a liberty interest, protected by the Fourteenth Amendment's Due Process Clause, in avoiding the disciplinary confinement he endured. As Justice Breyer details, Conner's prison punishment effected a severe alteration in the conditions of his incarceration. See post, at 494. Disciplinary confinement 489 as punishment for "high misconduct" not only deprives prisoners of privileges for protracted periods; unlike administrative segregation and protective custody, disciplinary confinement also stigmatizes them and diminishes parole prospects. Those immediate and lingering consequences should suffice to qualify such confinement as liberty depriving for purposes of Due Process Clause protection. See[1] I see the Due Process Clause itself, not Hawaii's prison code, as the wellspring of the protection due Conner. Deriving protected liberty interests from mandatory language in local prison codes would make of the fundamental right something more in certain States, something less in others. Liberty that may vary from Ossining, New York, to San Quentin, California, does not resemble the "Liberty" enshrined among "unalienable Rights" with which all persons are "endowed by their Creator." Declaration of Independence; see ("[T]he Due Process Clause protects [the unalienable liberty recognized in the Declaration of Independence] rather 490 than the particular rights or privileges conferred by specific laws or regulations.").[2] Deriving the prisoner's due process right from the code for his prison, moreover, yields this practical anomaly: a State that scarcely attempts to control the behavior of its prison guards may, for that very laxity, escape constitutional accountability; a State that tightly cabins the discretion of its prison workers may, for that attentiveness, become vulnerable to constitutional claims. An incentive for ruleless prison management disserves the State's penological goals and jeopardizes the welfare of prisoners. To fit the liberty recognized in our fundamental instrument of government, the process due by reason of the Constitution similarly should not depend on the particularities of the local prison's code. Rather, the basic, universal requirements are notice of the acts of misconduct prison officials say the inmate committed, and an opportunity to respond to the charges before a trustworthy decisionmaker. See generally Friendly, "Some Kind of Hearing," (an unbiased tribunal, notice of the proposed government action and the grounds asserted for it, and an opportunity to present reasons why the proposed action should not be taken are fundamental; additional safeguards depend on the importance of the private interest, the utility of the particular safeguards, and the burden of affording them). 491 For the reasons Justice Breyer cogently presents, see post, at 504, a return of this case to the District Court would be unavoidable if it were recognized that Conner was deprived of liberty within the meaning of the Due Process Clause. But upon such a return, a renewed motion for summary judgment would be in order, for the record, as currently composed, does not show that Conner was denied any procedural protection warranted in his case. In particular, a call for witnesses is properly refused when the projected testimony is not relevant to the matter in controversy. See Unless Conner were to demonstrate, in face of the disciplinary committee's stated reliance on his own admissions, that an issue of material fact is genuinely in controversy, see Fed. Rules Civ. Proc. 56(c), (e), his due process claim would fail. * * Because I conclude that Conner was deprived of liberty within the meaning of the Due Process Clause, I dissent from the judgment of the Court. I would return the case for a precisely focused determination whether Conner received the process that was indeed due.	1,858
Justice Breyer	second_dissenting	false	Sandin v. Conner	1995-06-19	null	https://www.courtlistener.com/opinion/117957/sandin-v-conner/	https://www.courtlistener.com/api/rest/v3/clusters/117957/	1,995	1994-080	1	5	4	The specific question in this case is whether a particular punishment that, among other things, segregates an inmate from the general prison population for violating a disciplinary rule deprives the inmate of "liberty" within the terms of the Fourteenth Amendment's Due Process Clause. The majority, asking whether that punishment "imposes atypical and significant hardship on the inmate in relation to the ordinary 492 incidents of prison life," ante, at 484, concludes that it does not do so. The majority's reasoning, however, particularly when read in light of this Court's precedents, seems to me to lead to the opposite conclusion. And, for that reason, I dissent. I The respondent, DeMont Conner, is an inmate at Halawa Correctional Facility, a maximum security prison in Hawaii. In August 1987, as a result of an altercation with a guard, prison authorities charged Conner with violating several prison disciplinary regulations, including one that prohibited "physical interference . . . resulting in the obstruction . . . of the performance of a correctional function. . . ." Haw. Admin. Rule § 17-201-7 (14) (1983). The prison's "adjustment committee" found Conner "guilty" and imposed a punishment of 30 days of "disciplinary segregation." Eventually, but after Conner had served the 30 days, a review official in the prison set aside the committee's determination, and expunged it from Conner's record. In the meantime, Conner had brought this "civil rights" action in Federal District Court in Hawaii. See Rev. Stat. § 1979, 42 U.S. C. § 1983. He claimed, among other things, that the adjustment committee's failure to let him call certain witnesses had deprived him of his "liberty . . . without due process of law." U. S. Const., Amdt. 14, § 1. The District Court granted summary judgment for the prison officials. But, the Ninth Circuit agreed with Conner that the committee's punishment had deprived him of procedurally protected "liberty." 15 F.3d 1463, 1466 (1993). It remanded the case to the District Court to determine whether the refusal to allow Conner to call the particular witnesses denied him of the process he was "due." See Part V, infra. The issue before this Court is whether Conner's particular punishment amounted to a deprivation of Conner's "liberty" within the meaning of the Due Process Clause. 493 II The Fourteenth Amendment says that a State shall not "deprive any person of life, liberty, or property, without due process of law." U. S. Const., Amdt. 14, § 1. In determining whether state officials have deprived an inmate, such as Conner, of a procedurally protected "liberty," this Court traditionally has looked either (1) to the nature of the deprivation (how severe, in degree or kind) or (2) to the State's rules governing the imposition of that deprivation (whether they, in effect, give the inmate a "right" to avoid it). See, e. g., Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454, 460-461, 464-465 (1989). Thus, this Court has said that certain changes in conditions may be so severe or so different from ordinary conditions of confinement that, whether or not state law gives state authorities broad discretionary power to impose them, the state authorities may not do so "without complying with minimum requirements of due process." Vitek v. Jones, 445 U.S. 480, 491-494 (1980) ("involuntary commitment to a mental hospital"); Washington v. Harper, 494 U.S. 210, 221-222 (1990) ("unwanted administration of antipsychotic drugs"). The Court has also said that deprivations that are less severe or more closely related to the original terms of confinement nonetheless will amount to deprivations of procedurally protected liberty, provided that state law (including prison regulations) narrowly cabins the legal power of authorities to impose the deprivation (thereby giving the inmate a kind of right to avoid it). See Hewitt v. Helms, 459 U.S. 460, 471-472 (1983) (liberty interest created by regulations "requiring . . . that administrative segregation will not occur absent specified substantive predicates"); Thompson, supra, at 461 ("method of inquiry . . . always has been to examine closely the language of the relevant statutes and regulations"); Board of Pardons v. Allen, 482 U.S. 369, 382 (1987) (O'Connor, J., dissenting) (insisting upon "standards that place real limits on decisionmaker discretion"); 494 Olim v. Wakinekona, 461 U.S. 238, 248-249 (1983) (existence of liberty interest regarding interstate prison transfers depends upon state regulations); Montanye v. Haymes, 427 U.S. 236, 242 (1976) (same for intrastate prison transfers); Meachum v. Fano, 427 U.S. 215, 225-227 (1976) (same). If we apply these general pre-existing principles to the relevant facts before us, it seems fairly clear, as the Ninth Circuit found, that the prison punishment here at issue deprived Conner of constitutionally protected "liberty." For one thing, the punishment worked a fairly major change in Conner's conditions. In the absence of the punishment, Conner, like other inmates in Halawa's general prison population would have left his cell and worked, taken classes, or mingled with others for eight hours each day. See Exh. 36, App. 126; Exh. 6, id., at 101. As a result of disciplinary segregation, however, Conner, for 30 days, had to spend his entire time alone in his cell (with the exception of 50 minutes each day on average for brief exercise and shower periods, during which he nonetheless remained isolated from other inmates and was constrained by leg irons and waist chains). See Exh. 61, id., at 156-157, 166. Cf. Hughes v. Rowe, 449 U.S. 5, 9, 11 (1980) (per curiam) (disciplinary "[s]egregation of a prisoner without a prior hearing may violate due process if the postponement of procedural protections is not justified by apprehended emergency conditions"); Wolff v. McDonnell, 418 U.S. 539, 552, n. 9, 571-572, n. 19 (1974) ("solitary confinement"i. e., segregation "in the usual `disciplinary cell' " or a "`dry cell' ""represents a major change in the conditions of confinement"); Baxter v. Palmigiano, 425 U.S. 308, 323 (1976) (segregation for "`serious misconduct' " triggers due process protection) (citation omitted). Moreover, irrespective of whether this punishment amounts to a deprivation of liberty independent of state law, here the prison's own disciplinary rules severely cabin the authority of prison officials to impose this kind of punishment. They provide (among other things): 495 (a) that certain specified acts shall constitute "high misconduct," Haw. Admin. Rule § 17-201-7a (1983) (emphasis added); (b) that misconduct punishable by more than four hours in disciplinary segregation "shall be punished" through a prison "adjustment committee" (composed of three unbiased members), §§ 17-201-12, 13; (c) that, when an inmate is charged with such misconduct, then (after notice and a hearing) "[a] finding of guilt shall be made" if the charged inmate admits guilt or the "charge is supported by substantial evidence," §§ 17-201-18(b), (b)(2); see §§ 17-201-16, 17; and (d) that the "[s]anctions" for high misconduct that "may be imposed as punishment . . . shall include. . . [d]isciplinary segregation up to thirty days," § 17-201-7(b). The prison rules thus: (1) impose a punishment that is substantial, (2) restrict its imposition as a punishment to instances in which an inmate has committed a defined offense, and (3) prescribe nondiscretionary standards for determining whether or not an inmate committed that offense. Accordingly, under this Court's liberty-defining standards, imposing the punishment would "deprive" Conner of "liberty" within the meaning of the Due Process Clause. Compare Hewitt v. Helms, supra, at 471-472 (liberty interest created by regulations "requiring that . . . administrative segregation will not occur absent specified substantive predicates"), with Thompson, 490 U. S., at 457, n. 2 (no liberty interest created by regulations which gave officials broad discretion to refuse a visit whenever "there are reasonable grounds to believe that," among other things, "[t]he visit will be detrimental to the inmate's rehabilitation"). Thus, under existing law, the Ninth Circuit correctly decided that the punishment deprived Conner of procedurally protected liberty and that the District Court should go on to decide whether or not the 496 prison's procedures provided Conner with the "process" that is "due." III The majority, while not disagreeing with this summary of pre-existing law, seeks to change, or to clarify, that law's "liberty" defining standards in one important respect. The majority believes that the Court's present "cabining of discretion" standard reads the Constitution as providing procedural protection for trivial "rights," as, for example, where prison rules set forth specific standards for the content of prison meals. Ante, at 482-483. It adds that this approach involves courts too deeply in routine matters of prison administration, all without sufficient justification. Ante, at 482. It therefore imposes a minimum standard, namely, that a deprivation falls within the Fourteenth Amendment's definition of "liberty" only if it "imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Ante, at 484, 486. I am not certain whether or not the Court means this standard to change prior law radically. If so, its generality threatens the law with uncertainty, for some lower courts may read the majority opinion as offering significantly less protection against deprivation of liberty, while others may find in it an extension of protection to certain "atypical" hardships that pre-existing law would not have covered. There is no need, however, for a radical reading of this standard, nor any other significant change in present law, to achieve the majority's basic objective, namely, to read the Constitution's Due Process Clause to protect inmates against deprivations of freedom that are important, not comparatively insignificant. Rather, in my view, this concern simply requires elaborating, and explaining, the Court's present standards (without radical revision) in order to make clear that courts must apply them in light of the purposes they were meant to serve. As so read, the standards will not 497 create procedurally protected"liberty" interests where only minor matters are at stake. Three sets of considerations, taken together, support my conclusion that the Court need not (and today's generally phrased minimum standard therefore does not) significantly revise current doctrine by deciding to remove minor prison matters from federal-court scrutiny. First, although this Court has said, and continues to say, that some deprivations of an inmate's freedom are so severe in kind or degree (or so far removed from the original terms of confinement) that they amount to deprivations of liberty, irrespective of whether state law (or prison rules) "cabin discretion," e. g., ante, at 483-484; Vitek v. Jones, 445 U. S., at 491-494; Washington v. Harper, 494 U. S., at 221-222; cf. Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 168 (1951) (Frankfurter, J., concurring), it is not easy to specify just when, or how much of, a loss triggers this protection. There is a broad middle category of imposed restraints or deprivations that, considered by themselves, are neither obviously so serious as to fall within, nor obviously so insignificant as to fall without, the Clause's protection. Second, the difficult line-drawing task that this middle category implies helps to explain why this Court developed its additional liberty-defining standard, which looks to local law (examining whether that local law creates a "liberty" by significantly limiting the discretion of local authorities to impose a restraint). See, e. g., Thompson, supra, at 461; Hewitt, 459 U. S., at 471-472. Despite its similarity to the way in which the Court determines the existence, or nonexistence, of "property" for Due Process Clause purposes, the justification for looking at local law is not the same in the prisoner liberty context. In protecting property, the Due Process Clause often aims to protect reliance, say, reliance upon an "entitlement" that local (i. e., nonconstitutional) law itself has created or helped to define. See Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972) ("It is a purpose of 498 the ancient institution of property to protect those claims upon which people rely in their daily lives, reliance that must not be arbitrarily undermined"). In protecting liberty, however, the Due Process Clause protects, not this kind of reliance upon a government-conferred benefit, but rather an absence of government restraint, the very absence of restraint that we call freedom. Cf. Meachum, 427 U. S., at 230-231 (Stevens, J., dissenting) (citing Morrissey v. Brewer, 408 U.S. 471, 482 (1972)). Nevertheless, there are several other important reasons, in the prison context, to consider the provisions of state law. The fact that a further deprivation of an inmate's freedom takes place under local rules that cabin the authorities' discretionary power to impose the restraint suggests, other things being equal, that the matter is more likely to have played an important role in the life of the inmate. Cf. Hewitt, supra, at 488 (Stevens, J., dissenting). It suggests, other things being equal, that the matter is more likely of a kind to which procedural protections historically have applied, and where they normally prove useful, for such rules often single out an inmate and condition a deprivation upon the existence, or nonexistence, of particular facts. Cf. Thompson, 490 U. S., at 468-470 (Marshall, J., dissenting); United States v. Florida East Coast R. Co., 410 U.S. 224, 244-245 (1973). It suggests, other things being equal, that the matter will not involve highly judgmental administrative matters that call for the wise exercise of discretionmatters where courts reasonably should hesitate to second-guess prison administrators. See Meachum, supra, at 225. It suggests, other things being equal, that the inmate will have thought that he himself, through control of his own behavior, could have avoided the deprivation, and thereby have believed that (in the absence of his misbehavior) the restraint fell outside the "sentence imposed" upon him. Cf. Thompson, 490 U. S., at 464-465. Finally, courts can identify the presence or absence of cabined discretion fairly easily and 499 objectively, at least much of the time. Cf. id., at 461. These characteristics of "cabined discretion" mean that courts can use it as a kind of touchstone that can help them, when they consider the broad middle category of prisoner restraints, to separate those kinds of restraints that, in general, are more likely to call for constitutionally guaranteed procedural protection, from those that more likely do not. Given these reasons and the precedent, I believe courts will continue to find this touchstone helpful as they seek to apply the majority's middle category standard. Third, there is, therefore, no need to apply the "discretioncabining" approachthe basic purpose of which is to provide a somewhat more objective method for identifying deprivations of protected "liberty" within a broad middle range of prisoner restraintswhere a deprivation is unimportant enough (or so similar in nature to ordinary imprisonment) that it rather clearly falls outside that middle category. Prison, by design, restricts the inmates' freedom. And, one cannot properly view unimportant matters that happen to be the subject of prison regulations as substantially aggravating a loss that has already occurred. Indeed, a regulation about a minor matter, for example, a regulation that seems to cabin the discretionary power of a prison administrator to deprive an inmate of, say, a certain kind of lunch, may amount simply to an instruction to the administrator about how to do his job, rather than a guarantee to the inmate of a "right" to the status quo. Cf. Colon v. Schneider, 899 F.2d 660, 668 (CA7 1990) (rules governing use of Mace to subdue inmates "directed toward the prison staff, not the inmates"). Thus, this Court has never held that comparatively unimportant prisoner "deprivations" fall within the scope of the Due Process Clause even if local law limits the authority of prison administrators to impose such minor deprivations. See Thompson, supra, at 461, n. 3 (leaving question open). And, in my view, it should now simply specify that they do not. 500 I recognize that, as a consequence, courts must separate the unimportant from the potentially significant, without the help of the more objective "discretion-cabining" test. Yet, making that judicial judgment seems no more difficult than many other judicial tasks. See Goss v. Lopez, 419 U.S. 565, 576 (1975) ("de minimis " line defining property interests under the Due Process Clause). It seems to me possible to separate less significant matters such as television privileges, "sack" versus "tray" lunches, playing the state lottery, attending an ex-stepfather's funeral, or the limits of travel when on prison furlough, e. g., Lyon v. Farrier, 727 F.2d 766, 768-769 (CA8 1984); Burgin v. Nix, 899 F.2d 733, 734-735 (CA8 1990) (per curiam); Hatch v. Sharp, 919 F.2d 1266, 1270 (CA7 1990); Merritt v. Broglin, 891 F.2d 169, 173-174 (CA7 1989); Segal v. Biller, No. 94-35448, 1994 U. S. App. LEXIS 30628, 45 (CA9, Oct. 31, 1994) (unpublished), from more significant matters, such as the solitary confinement at issue here. Indeed, prison regulations themselves may help in this respect, such as the regulations here which separate (from more serious matters) "low moderate" and "minor" misconduct. Compare, on the one hand, the maximum punishment for "moderate" misconduct of two weeks of disciplinary segregation, Haw. Admin. Rule § 17-201-8 (1983), with the less severe maximum punishments, on the other hand, for "low moderate" and "minor" misconduct, §§ 17-201-9, 10 (several hours of disciplinary segregation and "[l]oss of privileges" such as "community recreation; commissary; snacks; cigarettes, smoking; personal visitsno longer than fifteen days; personal correspondence; personal phone calls for not longer than fifteen days"; impounding personal property; extra duty; and reprimand). The upshot is the following: the problems that the majority identifies suggest that this Court should make explicit the lower definitional limit, in the prison context, of "liberty" under the Due Process Clausea limit that is already implicit in this Court's precedent. See Morrissey v. Brewer, 501 408 U. S., at 481 ("`grievous loss' ") (citations omitted). Those problems do not require abandoning that precedent. Kentucky Dept. of Corrections v. Thompson, supra; Olim v. Wakinekona, 461 U.S. 238 (1983); Hewitt v. Helms, 459 U.S. 460 (1983); Meachum v. Fano, 427 U.S. 215 (1976); Montanye v. Haymes, 427 U.S. 236 (1976). IV The Court today reaffirms that the "liberty" protected by the Fourteenth Amendment includes interests that state law may create. Ante, at 483-484. It excludes relatively minor matters from that protection. Ante, at 484 (requiring "atypical and significant hardship on the inmate"). And, it does not question the vast body of case law, including cases from this Court and every Circuit, recognizing that segregation can deprive an inmate of constitutionally protected "liberty." See, e. g., Hewitt, supra, at 472; Rodi v. Ventetuolo, 941 F.2d 22, 28 (CA1 1991); Soto v. Walker, 44 F.3d 169, 172 (CA2 1995); Layton v. Beyer, 953 F.2d 839, 849 (CA3 1992); Baker v. Lyles, 904 F.2d 925, 929 (CA4 1990); Dzana v. Foti, 829 F.2d 558, 560-561 (CA5 1987); Mackey v. Dyke, 29 F.3d 1086, 1092 (CA6 1994); Alston v. DeBruyn, 13 F.3d 1036, 1042 1043 (CA7 1994); Brown v. Frey, 889 F.2d 159, 166 (CA8 1989); Walker v. Sumner, 14 F.3d 1415, 1419 (CA9 1994); Reynoldson v. Shillinger, 907 F.2d 124, 126-127 (CA10 1990); McQueen v. Tabah, 839 F.2d 1525, 1528-1529 (CA11 1988); Lucas v. Hodges, 730 F.2d 1493, 1504-1506 (CADC 1984). That being so, it is difficult to see why the Court reverses, rather than affirms, the Court of Appeals in this case. The majority finds that Conner's "discipline in segregated confinement did not present" an "atypical, significant deprivation" because of three special features of his case, taken together. Ante, at 486. First, the punishment "mirrored" conditions imposed upon inmates in "administrative segregation and protective custody." Ibid. Second, Hawaii's 502 prison regulations give prison officials broad discretion to impose these other forms of nonpunitive segregation. Ibid. And, third, the State later "expunged Conner's disciplinary record," thereby erasing any stigma and transforming Conner's segregation for violation of a specific disciplinary rule into the sort of "totally discretionar[y] confinement" that would not have implicated a liberty interest. Ibid. I agree with the first two of the majority's assertions. The conditions in administrative and disciplinary segregation are relatively similar in Hawaii. Compare Exh. 60, App. 142-143, 152, with Exh. 61, id., at 156-157, 166. And, the rules governing administrative segregation do, indeed, provide prison officials with broad leeway. See Haw. Admin. Rule § 17-201-22(3) (1983) ("Whenever . . . justifiable reasons exist"). But, I disagree with the majority's assertion about the relevance of the expungement. How can a later decision of prison authorities transform Conner's segregation for a violation of a specific disciplinary rule into a term of segregation under the administrative rules? How can a later expungement restore to Conner the liberty that, in fact, he had already lost? Because Conner was found guilty under prison disciplinary rules, and was sentenced to solitary confinement under those rules, the Court should look to those rules. In sum, expungement or no, Conner suffered a deprivation that was significant, not insignificant. And, that deprivation took place under disciplinary rules that, as described in Part II, supra, do cabin official discretion sufficiently. I would therefore hold that Conner was deprived of "liberty" within the meaning of the Due Process Clause. V Other related legal principles, applicable here, should further alleviate the majority's fear that application of the Due Process Clause to significant prison disciplinary action, see 503 Part III, supra, will lead federal courts to intervene improperly (as the majority sees it) "in the day-to-day management of prisons, often squandering judicial resources with little offsetting benefit to anyone." Ante, at 482. For one thing, the "process" that is "due" in the context of prison discipline is not the full blown procedure that accompanies criminal trials. Rather, "due process" itself is a flexible concept, which, in the context of a prison, must take account of the legitimate needs of prison administration when deciding what procedural elements basic considerations of fairness require. See, e. g., Goss v. Lopez, 419 U. S., at 578 (the "`very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation' ") (quoting Cafeteria & Restaurant Workers v. McElroy, 367 U.S. 886, 895 (1961)); Mathews v. Eldridge, 424 U.S. 319, 334 (1976) ("`[D]ue process isflexible and calls for such procedural protections as the particular situation demands' ") (quoting Morrissey v. Brewer, supra, at 481); Friendly, "Some Kind of Hearing," 123 U. Pa. L. Rev. 1267, 1278 (1975) ("required degree of procedural safeguards varies"); Wolff, 418 U. S., at 563-567 (requiringin addition to notice, some kind of hearing, and written reasons for the decisionpermission to call witnesses and to present documentary evidence when doing so "will not be unduly hazardous to institutional safety or correctional goals," id., at 566). More importantly for present purposes, whether or not a particular procedural element normally seems appropriate to a certain kind of proceeding, the Due Process Clause does not require process unless, in the individual case, there is a relevant factual dispute between the parties. Just as courts do not hold hearings when there is no "genuine" and "material" issue of fact in dispute between the parties, see Fed. Rule Civ. Proc. 56 (summary judgment), so the Due Process Clause does not entitle an inmate to additional disciplinary hearing procedure (such as the calling of a witness) unless 504 there is a factual dispute (relevant to guilt) that the additional procedure might help to resolve, see Codd v. Velger, 429 U.S. 624, 627 (1977) (per curiam). I mention this latter legal point both because it illustrates a legal protection against the meritless case, and because a review of the record before us indicates that, in this very case, if we were to affirm, it would pose an important obstacle to Conner's eventual success. The record contains the prison adjustment committee's report, which says that its finding of guilt rests upon Conner's own admissions. The committee wrote that it "based" its "decision" upon Conner's "statements" that (when he was strip-searched) "he turned around" and "looked at" the officer, he "then `eyed up' " the officer, he "was hesitant to comply" with the strip-search instructions, he "dislikes" the officer, and he spoke an obscenity during the search process. App. to Pet. for Cert. A-67. The record contains no explanation that we have found, either in Conner's affidavits or elsewhere, of how the witnesses he wanted to call (or the other procedures that he sought) could have led to any evidence relevant to the facts at issue. I note that the petitioner, in her petition for certiorari, asked us, for this reason, to decide this case in her favor. But, we cannot do so. Even were we to assume that this question falls within the scope of the question we agreed to answer, the record nonetheless reveals that the petitioner did not ask for summary judgment on this basis. Thus, Conner has not had an opportunity to point to "specific facts" that might explain why these witnesses (or other procedures) were needed. See Fed. Rule Civ. Proc. 56(e) ("must set forth specific facts showing that there is a genuine issue for trial"). Were this Court to affirm, the defense would remain free to move for summary judgment on remand, and Conner would have to respond with a specific factual showing in order to avoid an adverse judgment. 505 Because the Court of Appeals remanded this case to the District Court for consideration of these matters, and because, as explained in Parts IIIV, supra, I believe it correctly decided that Conner was deprived of liberty within the meaning of the Due Process Clause, I would affirm its judgment. For these reasons, I respectfully dissent.	The specific question in this case is whether a particular punishment that, among other things, segregates an inmate from the general prison population for violating a disciplinary rule deprives the inmate of "liberty" within the terms of the Fourteenth Amendment's Due Process Clause. The majority, asking whether that punishment "imposes atypical and significant hardship on the inmate in relation to the ordinary 492 incidents of prison life," ante, at 484, concludes that it does not do so. The majority's reasoning, however, particularly when read in light of this Court's precedents, seems to me to lead to the opposite conclusion. And, for that reason, I dissent. I The respondent, DeMont Conner, is an inmate at Halawa Correctional Facility, a maximum security prison in Hawaii. In August as a result of an altercation with a guard, prison authorities charged Conner with violating several prison disciplinary regulations, including one that prohibited "physical interference resulting in the obstruction of the performance of a correctional function." Haw. Admin. Rule 17-201-7 (14) The prison's "adjustment committee" found Conner "guilty" and imposed a punishment of 30 days of "disciplinary segregation." Eventually, but after Conner had served the 30 days, a review official in the prison set aside the committee's determination, and expunged it from Conner's record. In the meantime, Conner had brought this "civil rights" action in Federal District Court in Hawaii. See Rev. Stat. 1979, 42 U.S. C. 1983. He claimed, among other things, that the adjustment committee's failure to let him call certain witnesses had deprived him of his "liberty without due process of law." U. S. Const., Amdt. 14, 1. The District Court granted summary judgment for the prison officials. But, the Ninth Circuit agreed with Conner that the committee's punishment had deprived him of procedurally protected "liberty." It remanded the case to the District Court to determine whether the refusal to allow Conner to call the particular witnesses denied him of the process he was "due." See Part V, infra. The issue before this Court is whether Conner's particular punishment amounted to a deprivation of Conner's "liberty" within the meaning of the Due Process Clause. 493 The Fourteenth Amendment says that a State shall not "deprive any person of life, liberty, or property, without due process of law." U. S. Const., Amdt. 14, 1. In determining whether state officials have deprived an inmate, such as Conner, of a procedurally protected "liberty," this Court traditionally has looked either (1) to the nature of the deprivation (how severe, in degree or kind) or (2) to the State's rules governing the imposition of that deprivation (whether they, in effect, give the inmate a "right" to avoid it). See, e. g., Kentucky Dept. of Thus, this Court has said that certain changes in conditions may be so severe or so different from ordinary conditions of confinement that, whether or not state law gives state authorities broad discretionary power to impose them, the state authorities may not do so "without complying with minimum requirements of due process." ; The Court has also said that deprivations that are less severe or more closely related to the original terms of confinement nonetheless will amount to deprivations of procedurally protected liberty, provided that state law (including prison regulations) narrowly cabins the legal power of authorities to impose the deprivation (thereby giving the inmate a kind of right to avoid it). See ; ; Board of (insisting upon "standards that place real limits on decisionmaker discretion"); 494 ; ; If we apply these general pre-existing principles to the relevant facts before us, it seems fairly clear, as the Ninth Circuit found, that the prison punishment here at issue deprived Conner of constitutionally protected "liberty." For one thing, the punishment worked a fairly major change in Conner's conditions. In the absence of the punishment, Conner, like other inmates in Halawa's general prison population would have left his cell and worked, taken classes, or mingled with others for eight hours each day. See Exh. 36, App. 126; Exh. 6, As a result of disciplinary segregation, however, Conner, for 30 days, had to spend his entire time alone in his cell (with the exception of 50 minutes each day on average for brief exercise and shower periods, during which he nonetheless remained isolated from other inmates and was constrained by leg irons and waist chains). See Exh. 61, Cf. (disciplinary "[s]egregation of a prisoner without a prior hearing may violate due process if the postponement of procedural protections is not justified by apprehended emergency conditions"); ; (citation omitted). Moreover, irrespective of whether this punishment amounts to a deprivation of liberty independent of state law, here the prison's own disciplinary rules severely cabin the authority of prison officials to impose this kind of punishment. They provide (among other things): 495 (a) that certain specified acts shall constitute "high misconduct," Haw. Admin. Rule 17-201-7a (emphasis added); (b) that misconduct punishable by more than four hours in disciplinary segregation "shall be punished" through a prison "adjustment committee" (composed of three unbiased members), 17-201-12, 13; (c) that, when an inmate is charged with such misconduct, then (after notice and a hearing) "[a] finding of guilt shall be made" if the charged inmate admits guilt or the "charge is supported by substantial evidence," 17-201-18(b), (b)(2); see 17-201-16, 17; and (d) that the "[s]anctions" for high misconduct that "may be imposed as punishment shall include. [d]isciplinary segregation up to thirty days," 17-201-7(b). The prison rules thus: (1) impose a punishment that is substantial, (2) restrict its imposition as a punishment to instances in which an inmate has committed a defined offense, and (3) prescribe nondiscretionary standards for determining whether or not an inmate committed that offense. Accordingly, under this Court's liberty-defining standards, imposing the punishment would "deprive" Conner of "liberty" within the meaning of the Due Process Clause. Compare at with U. S., at 457, n. 2 (no liberty interest created by regulations which gave officials broad discretion to refuse a visit whenever "there are reasonable grounds to believe that," among other things, "[t]he visit will be detrimental to the inmate's rehabilitation"). Thus, under existing law, the Ninth Circuit correctly decided that the punishment deprived Conner of procedurally protected liberty and that the District Court should go on to decide whether or not the 496 prison's procedures provided Conner with the "process" that is "due." I The majority, while not disagreeing with this summary of pre-existing law, seeks to change, or to clarify, that law's "liberty" defining standards in one important respect. The majority believes that the Court's present "cabining of discretion" standard reads the Constitution as providing procedural protection for trivial "rights," as, for example, where prison rules set forth specific standards for the content of prison meals. Ante, at -483. It adds that this approach involves courts too deeply in routine matters of prison administration, all without sufficient justification. Ante, at It therefore imposes a minimum standard, namely, that a deprivation falls within the Fourteenth Amendment's definition of "liberty" only if it "imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Ante, at 484, 486. I am not certain whether or not the Court means this standard to change prior law radically. If so, its generality threatens the law with uncertainty, for some lower courts may read the majority opinion as offering significantly less protection against deprivation of liberty, while others may find in it an extension of protection to certain "atypical" hardships that pre-existing law would not have covered. There is no need, however, for a radical reading of this standard, nor any other significant change in present law, to achieve the majority's basic objective, namely, to read the Constitution's Due Process Clause to protect inmates against deprivations of freedom that are important, not comparatively insignificant. Rather, in my view, this concern simply requires elaborating, and explaining, the Court's present standards (without radical revision) in order to make clear that courts must apply them in light of the purposes they were meant to serve. As so read, the standards will not 497 create procedurally protected"liberty" interests where only minor matters are at stake. Three sets of considerations, taken together, support my conclusion that the Court need not (and today's generally phrased minimum standard therefore does not) significantly revise current doctrine by deciding to remove minor prison matters from federal-court scrutiny. First, although this Court has said, and continues to say, that some deprivations of an inmate's freedom are so severe in kind or degree (or so far removed from the original terms of confinement) that they amount to deprivations of liberty, irrespective of whether state law (or prison rules) "cabin discretion," e. g., ante, at 483-484; 445 U. S., at ; 494 U. S., at ; cf. Joint Anti-Fascist Refugee it is not easy to specify just when, or how much of, a loss triggers this protection. There is a broad middle category of imposed restraints or deprivations that, considered by themselves, are neither obviously so serious as to fall within, nor obviously so insignificant as to fall without, the Clause's protection. Second, the difficult line-drawing task that this middle category implies helps to explain why this Court developed its additional liberty-defining standard, which looks to local law (examining whether that local law creates a "liberty" by significantly limiting the discretion of local authorities to impose a restraint). See, e. g., ; 459 U. S., at Despite its similarity to the way in which the Court determines the existence, or nonexistence, of "property" for Due Process Clause purposes, the justification for looking at local law is not the same in the prisoner liberty context. In protecting property, the Due Process Clause often aims to protect reliance, say, reliance upon an "entitlement" that local (i. e., nonconstitutional) law itself has created or helped to define. See Board of Regents of State In protecting liberty, however, the Due Process Clause protects, not this kind of reliance upon a government-conferred benefit, but rather an absence of government restraint, the very absence of restraint that we call freedom. Cf. -231 ). Nevertheless, there are several other important reasons, in the prison context, to consider the provisions of state law. The fact that a further deprivation of an inmate's freedom takes place under local rules that cabin the authorities' discretionary power to impose the restraint suggests, other things being equal, that the matter is more likely to have played an important role in the life of the inmate. Cf. It suggests, other things being equal, that the matter is more likely of a kind to which procedural protections historically have applied, and where they normally prove useful, for such rules often single out an inmate and condition a deprivation upon the existence, or nonexistence, of particular facts. Cf. U. S., at 468-470 (Marshall, J., dissenting); United It suggests, other things being equal, that the matter will not involve highly judgmental administrative matters that call for the wise exercise of discretionmatters where courts reasonably should hesitate to second-guess prison administrators. See It suggests, other things being equal, that the inmate will have thought that he himself, through control of his own behavior, could have avoided the deprivation, and thereby have believed that (in the absence of his misbehavior) the restraint fell outside the "sentence imposed" upon him. Cf. U. S., at 464-465. Finally, courts can identify the presence or absence of cabined discretion fairly easily and 499 objectively, at least much of the time. Cf. These characteristics of "cabined discretion" mean that courts can use it as a kind of touchstone that can help them, when they consider the broad middle category of prisoner restraints, to separate those kinds of restraints that, in general, are more likely to call for constitutionally guaranteed procedural protection, from those that more likely do not. Given these reasons and the precedent, I believe courts will continue to find this touchstone helpful as they seek to apply the majority's middle category standard. Third, there is, therefore, no need to apply the "discretioncabining" approachthe basic purpose of which is to provide a somewhat more objective method for identifying deprivations of protected "liberty" within a broad middle range of prisoner restraintswhere a deprivation is unimportant enough (or so similar in nature to ordinary imprisonment) that it rather clearly falls outside that middle category. Prison, by design, restricts the inmates' freedom. And, one cannot properly view unimportant matters that happen to be the subject of prison regulations as substantially aggravating a loss that has already occurred. Indeed, a regulation about a minor matter, for example, a regulation that seems to cabin the discretionary power of a prison administrator to deprive an inmate of, say, a certain kind of lunch, may amount simply to an instruction to the administrator about how to do his job, rather than a guarantee to the inmate of a "right" to the status quo. Cf. Thus, this Court has never held that comparatively unimportant prisoner "deprivations" fall within the scope of the Due Process Clause even if local law limits the authority of prison administrators to impose such minor deprivations. See n. 3 And, in my view, it should now simply specify that they do not. 500 I recognize that, as a consequence, courts must separate the unimportant from the potentially significant, without the help of the more objective "discretion-cabining" test. Yet, making that judicial judgment seems no more difficult than many other judicial tasks. See It seems to me possible to separate less significant matters such as television privileges, "sack" versus "tray" lunches, playing the state lottery, attending an ex-stepfather's funeral, or the limits of travel when on prison furlough, e. g., ; ; ; ; Segal v. Biller, No. 94-35448, U. S. App. LEXIS 306, 45 (unpublished), from more significant matters, such as the solitary confinement at issue here. Indeed, prison regulations themselves may help in this respect, such as the regulations here which separate (from more serious matters) "low moderate" and "minor" misconduct. Compare, on the one hand, the maximum punishment for "moderate" misconduct of two weeks of disciplinary segregation, Haw. Admin. Rule 17-201-8 with the less severe maximum punishments, on the other hand, for "low moderate" and "minor" misconduct, 17-201-9, 10 (several hours of disciplinary segregation and "[l]oss of privileges" such as "community recreation; commissary; snacks; cigarettes, smoking; personal visitsno longer than fifteen days; personal correspondence; personal phone calls for not longer than fifteen days"; impounding personal property; extra duty; and reprimand). The upshot is the following: the problems that the majority identifies suggest that this Court should make explicit the lower definitional limit, in the prison context, of "liberty" under the Due Process Clausea limit that is already implicit in this Court's precedent. See * (citations omitted). Those problems do not require abandoning that precedent. Kentucky Dept. of ; ; ; The Court today reaffirms that the "liberty" protected by the Fourteenth Amendment includes interests that state law may create. Ante, at 483-484. It excludes relatively minor matters from that protection. Ante, at 484 (requiring "atypical and significant hardship on the inmate"). And, it does not question the vast body of case law, including cases from this Court and every Circuit, recognizing that segregation can deprive an inmate of constitutionally protected "liberty." See, e. g., ; ; ; ; ; ; ; ; ; ; ; 15-1529 ; That being so, it is difficult to see why the Court reverses, rather than affirms, the Court of Appeals in this case. The majority finds that Conner's "discipline in segregated confinement did not present" an "atypical, significant deprivation" because of three special features of his case, taken together. Ante, at 486. First, the punishment "mirrored" conditions imposed upon inmates in "administrative segregation and protective custody." Second, Hawaii's 502 prison regulations give prison officials broad discretion to impose these other forms of nonpunitive segregation. And, third, the State later "expunged Conner's disciplinary record," thereby erasing any stigma and transforming Conner's segregation for violation of a specific disciplinary rule into the sort of "totally discretionar[y] confinement" that would not have implicated a liberty interest. I agree with the first two of the majority's assertions. The conditions in administrative and disciplinary segregation are relatively similar in Hawaii. Compare Exh. 60, App. 142-143, 152, with Exh. 61, And, the rules governing administrative segregation do, indeed, provide prison officials with broad leeway. See Haw. Admin. Rule 17-201-22(3) ("Whenever justifiable reasons exist"). But, I disagree with the majority's assertion about the relevance of the expungement. How can a later decision of prison authorities transform Conner's segregation for a violation of a specific disciplinary rule into a term of segregation under the administrative rules? How can a later expungement restore to Conner the liberty that, in fact, he had already lost? Because Conner was found guilty under prison disciplinary rules, and was sentenced to solitary confinement under those rules, the Court should look to those rules. In sum, expungement or no, Conner suffered a deprivation that was significant, not insignificant. And, that deprivation took place under disciplinary rules that, as described in Part do cabin official discretion sufficiently. I would therefore hold that Conner was deprived of "liberty" within the meaning of the Due Process Clause. V Other related legal principles, applicable here, should further alleviate the majority's fear that application of the Due Process Clause to significant prison disciplinary action, see 503 Part I, will lead federal courts to intervene improperly (as the majority sees it) "in the day-to-day management of prisons, often squandering judicial resources with little offsetting benefit to anyone." Ante, at For one thing, the "process" that is "due" in the context of prison discipline is not the full blown procedure that accompanies criminal trials. Rather, "due process" itself is a flexible concept, which, in the context of a prison, must take account of the legitimate needs of prison administration when deciding what procedural elements basic considerations of fairness require. See, e. g., ); (quoting ); Friendly, "Some Kind of Hearing," ; -567 (requiringin addition to notice, some kind of hearing, and written reasons for the decisionpermission to call witnesses and to present documentary evidence when doing so "will not be unduly hazardous to institutional safety or correctional goals," ). More importantly for present purposes, whether or not a particular procedural element normally seems appropriate to a certain kind of proceeding, the Due Process Clause does not require process unless, in the individual case, there is a relevant factual dispute between the parties. Just as courts do not hold hearings when there is no "genuine" and "material" issue of fact in dispute between the parties, see Fed. Rule Civ. Proc. 56 (summary judgment), so the Due Process Clause does not entitle an inmate to additional disciplinary hearing procedure (such as the calling of a witness) unless 504 there is a factual dispute (relevant to guilt) that the additional procedure might help to resolve, see I mention this latter legal point both because it illustrates a legal protection against the meritless case, and because a review of the record before us indicates that, in this very case, if we were to affirm, it would pose an important obstacle to Conner's eventual success. The record contains the prison adjustment committee's report, which says that its finding of guilt rests upon Conner's own admissions. The committee wrote that it "based" its "decision" upon Conner's "statements" that (when he was strip-searched) "he turned around" and "looked at" the officer, he "then `eyed up' " the officer, he "was hesitant to comply" with the strip-search instructions, he "dislikes" the officer, and he spoke an obscenity during the search process. App. to Pet. for Cert. A-67. The record contains no explanation that we have found, either in Conner's affidavits or elsewhere, of how the witnesses he wanted to call (or the other procedures that he sought) could have led to any evidence relevant to the facts at issue. I note that the petitioner, in her petition for certiorari, asked us, for this reason, to decide this case in her favor. But, we cannot do so. Even were we to assume that this question falls within the scope of the question we agreed to answer, the record nonetheless reveals that the petitioner did not ask for summary judgment on this basis. Thus, Conner has not had an opportunity to point to "specific facts" that might explain why these witnesses (or other procedures) were needed. See Fed. Rule Civ. Proc. 56(e) ("must set forth specific facts showing that there is a genuine issue for trial"). Were this Court to affirm, the defense would remain free to move for summary judgment on remand, and Conner would have to respond with a specific factual showing in order to avoid an adverse judgment. 505 Because the Court of Appeals remanded this case to the District Court for consideration of these matters, and because, as explained in Parts , I believe it correctly decided that Conner was deprived of liberty within the meaning of the Due Process Clause, I would affirm its judgment. For these reasons, I respectfully dissent.	1,859
Justice Stevens	majority	false	Office of Senator Mark Dayton v. Hanson	2007-05-21	null	https://www.courtlistener.com/opinion/145732/office-of-senator-mark-dayton-v-hanson/	https://www.courtlistener.com/api/rest/v3/clusters/145732/	2,007	2006-043	1	8	0	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.[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.[2] The Court of Appeals affirmed, Fields v. Office of Eddie Bernice Johnson, Employing Office, United States Congress, 459 F.3d 1 (C.A.D.C. 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. ___, ___ S.Ct. ___, ___ L.Ed.2d ___, 75 USLW 3266 (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.[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.[4] The Court of Appeals' opinion rejects appellant's argument that forcing Senator Dayton to defend against the allegations in this case would necessarily *2021 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.[5] See Clark v. Martinez, 543 U.S. 371, 381-382, 125 S. Ct. 716, 160 L. Ed. 2d 734 (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, 103 S. Ct. 948, 74 L. Ed. 2d 794 (1983); see also Fornaris v. Ridge Tool Co., 400 U.S. 41, 42, n. 1, 91 S. Ct. 156, 27 L. Ed. 2d 174 (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 (C.A.10 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.	Prior to January 3, 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), as amended, et seq. (2000 ed. and Supp. IV), and alleging violations of three other federal statutes.[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.[2] The Court of Appeals affirmed, 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. S.Ct. L.Ed.2d 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.[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.[4] The Court of Appeals' opinion rejects appellant's argument that forcing Senator Dayton to defend against the allegations in this case would necessarily *2021 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.[5] See 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. ; see also 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 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 (case below), with 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.	1,864
Justice Breyer	majority	false	Fowler v. United States	2011-05-26	null	https://www.courtlistener.com/opinion/217514/fowler-v-united-states/	https://www.courtlistener.com/api/rest/v3/clusters/217514/	2,011	2010-049	2	7	2	The federal witness tampering statute makes it a crime “to kill another person, with intent to . . . prevent the communication by any person to a law enforcement officer . . . of the United States” of “information relating to the . . . possible commission of a Federal offense.” 18 U.S. C. §1512(a)(1)(C). We focus on instances where a defendant killed a person with an intent to prevent that person from communicating with law enforcement officers in general but where the defendant did not have federal law en forcement officers (or any specific individuals) particularly in mind. The question before us concerns what, if any thing, the Government must show beyond this broad in definite intent in order to show that the defendant more particularly intended to prevent communication with federal officers as well. We hold that, in such circum stances, the Government must show that there was a reasonable likelihood that a relevant communication would have been made to a federal officer. I In the early morning hours of March 3, 1998, Charles 2 FOWLER v. UNITED STATES Opinion of the Court Fowler and several other men prepared to rob a Florida bank. They met in a cemetery, put on black clothes and gloves, began to drink and use drugs, and discussed the proposed crime. Shortly before daybreak a local police officer, Todd Horner, came upon the group. He pulled out his gun and asked the men to identify themselves. Fowler and some of the others managed to overcome Horner and take his gun. After Horner spoke to one of the men by name, Fowler said, “Now we can’t walk away from this thing.” App. 38 (internal quotation marks omitted). And he shot and killed Horner. Federal authorities charged Fowler with violating the federal witness tampering statute. He was convicted. On appeal, Fowler argued that the evidence was insufficient to show that he had killed Horner intending to prevent Horner from communicating with a federal officer. The Eleventh Circuit disagreed. It held that a showing of a “possible or potential communication to federal authori ties” was sufficient. 603 F.3d 883, 888 (2010). Fowler sought certiorari. And because the Circuits have disagreed about this last-mentioned matter, we granted Fowler’s petition for certiorari. Compare United States v. Harris, 498 F.3d 278, 286 (CA4 2007) (“So long as the information the defendant seeks to suppress actually relates to the commission or possible commission of a federal offense, the federal nexus requirement is estab lished”), with United States v. Lopez, 372 F.3d 86, 91–92 (CA2 2004), vacated and remanded on other grounds, 544 U.S. 902 (2005) (requiring Government to show federal crime along with “ ‘additional appropriate evidence’ ” that “the victim plausibly might have turned to federal offi cials”); see also United States v. Bell, 113 F.3d 1345, 1349 (CA3 1997); United States v. Causey, 185 F.3d 407, 422– 423 (CA5 1999); United States v. Wright, 536 F.3d 819, 824–825 (CA8 2008). Cite as: 563 U. S. ____ (2011) 3 Opinion of the Court II The federal witness tampering statute in relevant part forbids the “kill[ing] or attempt[ed] kill[ing]” of “another person” with a certain “intent,” namely, an “intent to . . . prevent the communication by any per son to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense . . . .” 18 U.S. C. §1512(a)(1)(C). A related subsection says that in a prosecution for this offense “no state of mind need be proved with respect to the circumstance . . . that the judge is a judge of the United States or that the law enforcement officer is an officer or employee of the Federal Government . . . .” §1512(g)(2). This language makes clear that in a prosecution the Gov ernment must prove (1) a killing or attempted killing, (2) committed with a particular intent, namely, an intent (a) to “prevent” a “communication” (b) about “the commission or possible commission of a Federal offense” (c) to a federal “law enforcement officer or judge.” The question here is how this language applies when a defendant (1) kills a victim, (2) with an intent (a) to pre vent a communication (b) about the commission or possi ble commission of a federal offense but (c) to law enforce ment officers in general rather than to some specific law enforcement officer or set of officers which the defendant has in mind. This kind of circumstance is not necessarily rare, as the facts here illustrate. Fowler (we here assume) was not thinking specifically about federal officers, but he would nonetheless have wanted to prevent communication with federal officers from taking place (had he considered the matter). 4 FOWLER v. UNITED STATES Opinion of the Court III When the defendant has in mind a particular individual or a particular set of individuals with whom he fears the victim might communicate, the application of the statute is relatively clear. For instance, if a defendant kills a victim with the intent of preventing the victim from com municating with a particular individual, say John Smith, who the defendant knows is a federal law enforcement officer, the statute fits like a glove. If a defendant kills a victim with the intent of preventing the victim from com municating with Sam Smith, who is in fact (but who the defendant does not know is) a federal law enforcement officer, the statute still fits, for it specifically says that “no state of mind need be proved” with respect to this last mentioned circumstance. Nothing in the statutory language, however, limits it to these kinds of instances, instances in which the defendant has some law enforcement officer or set of officers, or other identifiable individuals, particularly in mind. Moreover, any such limitation would conflict with the statute’s basic purpose. Witness tampering may prove more serious (and more effective) when the crime takes place before the victim has engaged in any communication at all with law enforcement officers—at a time when the precise commu nication and nature of the officer who may receive it are not yet known. Cf., e.g., S. Rep. No. 97–532, pp. 14, 15 (1982) (statute applies “to offenses against witnesses, victims, or informants which occur before the witness testifies or the informant communicates with law en forcement officers”); id., at 19 (witness “[i]ntimidation offenses are particularly insidious and do violence to traditional notions of justice because no one can be con victed of a crime which is not reported. [Section 1512] reaches intimidation offenses committed before a crime is reported to the appropriate authorities”). Hence the stat ute covers a defendant who kills with intent to prevent Cite as: 563 U. S. ____ (2011) 5 Opinion of the Court communication with law enforcement officers generally (i.e., with any and all law enforcement officers). And we must consequently decide what, if anything, the Govern ment must show about the likelihood of a hypothetical communication with a federal law enforcement officer in circumstances where the defendant did not think specifi cally about any particular communication or its recipient. In these circumstances, the application of the statute is not as simple. We cannot determine whether the individ ual the defendant had in mind is in fact a federal officer, because the defendant did not have a particular individual in mind. And we cannot insist that the defendant have had some general thought about federal officers in mind because the statute says that “no state of mind need be proved” in respect to the federal nature of the communica tion’s recipient. §1512(g)(2). What, then, must the Gov ernment show to prove that such a defendant intended to prevent communications to federal officers? We begin with two basic propositions. First, in our view, the Government need not show beyond a reasonable doubt (or even that it is more likely than not) that the hypothetical communication would have been to a federal officer. No Circuit has adopted this interpretation, and no party argues for it here. But see post, at 1–2 (SCALIA, J., concurring in judgment). And for good reason: The rele vant question concerns the defendant’s intent. The Gov ernment will already have shown beyond a reasonable doubt that the defendant possessed the relevant broad indefinite intent, namely, the intent to prevent the victim from communicating with (unspecified) law enforcement officers. And one can possess an intent (i.e., one can act in order to bring about a certain state of affairs) even if there is considerable doubt whether the event that the intent contemplates will in fact occur. One can, for example, put up shutters with the intent of protecting the furniture from hurricane damage even if there is considerable doubt 6 FOWLER v. UNITED STATES Opinion of the Court that any hurricane will actually occur. One can drive to Fenway Park with the intent of seeing the Red Sox play that afternoon even if a mistake about the date means the stadium is empty. One can blow up a bridge with the intent of stopping an advancing army, even if the army advances regardless, along a different route. And, simi larly, a defendant can kill a victim with an intent to prevent the victim from communicating with federal law enforcement officers even if there is some considerable doubt that any such communication would otherwise have taken place. But, second, the Government must show more than the broad indefinite intent we have described, the intent to prevent communications to law enforcement officers in general. That is so for two separate reasons. For one thing, the statute speaks of an “intent to prevent” some thing. But (apart from mistakes, as in our Red Sox exam ple) one cannot act with an “intent to prevent” something that could not possibly have taken place regardless. We can speak of a Colorado trout fisherman who tries to prevent his trout stream from being invaded by pike or carp, but in ordinary circumstances we cannot speak about trying to prevent the stream’s invasion by whales. Indeed, the dictionary defines “prevent” as “to render (an intended, possible, or likely action or event) impractical or impossible by anticipatory action.” OED Online (Mar. 2011) (emphasis added), http://www.oed.com/view/Entry/ 151073?rskey=QWN6QB&result=2&isAdvanced=false (all Internet materials as visited May 23, 2011, and available in Clerk of Court’s case file). For another thing, to allow the Government to show no more than the broad indefinite intent we have described (the intent to prevent communications to law enforcement officers in general) would bring within the scope of this statute many instances of witness tampering in purely state investigations and proceedings, thus extending the Cite as: 563 U. S. ____ (2011) 7 Opinion of the Court scope of this federal statute well beyond the primarily federal area that Congress had in mind. See infra, at 8–9. For both these reasons, unlike the dissent, we cannot read the statute as intending to excuse the Government from proving something about the hypothetical communication with federal officers. The question remains, what is that something? IV We find possible answers to this question in the diction ary definition of the word “prevent.” As we have said, that word applies where a defendant, by “anticipatory action,” (here, killing a victim) intended “to render . . . impractical or impossible” an “action or event” (here, the victim’s communication with a federal law enforcement officer) which (1) was “intended,” (2) was “possible,” or (3) was “likely” to have otherwise occurred. No one suggests that the first word, the word “in tended,” sets forth the appropriate standard. That word in this context refers to the victim’s intent. That intent is often difficult to discern. Moreover, to require the Gov ernment to prove it would prevent the statute from apply ing where it is plain that federal officers would have been involved in investigating and prosecuting the offense (for instance, robbing the United States Bullion Depository at Fort Knox), but where the defendant killed the victim before the victim had decided to communicate to law enforcement officers. Congress, however, intended the statute to apply in these last-mentioned circumstances. See supra, at 4. The Government (and the Eleventh Circuit) would rest their standard on the second word, the word “possible.” See Brief for United States 10 (standard is “whether it was reasonably possible that at least one of the communi cations that the murder . . . was intended to prevent would have been with a federal law enforcement official”); 603 8 FOWLER v. UNITED STATES Opinion of the Court F. 3d, at 888 (requiring showing of a “possible or potential communication to federal authorities”). But, in our view, that standard is difficult to reconcile with the statute’s language and its intended, basically federal, scope. Cf. supra, at 6–7. Often, when a defendant acts in ways that violate state criminal law, some or all of those acts will violate federal criminal law as well. And where a federal crime is at issue, communication with federal law enforcement offi cers is almost always a possibility. Thus, to allow the Government to show only a mere possibility that a com munication would have been with federal officials is to permit the Government to show little more than the possi ble commission of a federal offense. (That is to say, the latter showing by itself would almost automatically show the statutorily necessary connection with a federal law enforcement officer.) The “possibility” standard would thereby weaken or eliminate the independent force of the separate statutory requirement that the defendant, in killing the victim, must intend to prevent communication with one who is “a law enforcement officer or judge of the United States.” 18 U.S. C. §1512(a)(1)(C) (emphasis added); see §1515(a)(4) (defining “law enforcement officer” as “an officer or employee of the Federal Government” (emphasis added)). Cf. Duncan v. Walker, 533 U.S. 167, 174 (2001) (normally we must give effect “to every clause and word of a statute” (internal quotation marks omit ted)); Ratzlaf v. United States, 510 U.S. 135, 140–141 (1994) (expressing particular reluctance to “treat statutory terms” as “surplusage” “when the words describe an ele ment of a criminal offense”). Moreover, because of the frequent overlap between state and federal crimes, the use of a standard based on the word “possible” would transform a federally oriented statute into a statute that would deal with crimes, investi gations, and witness tampering that, as a practical mat Cite as: 563 U. S. ____ (2011) 9 Opinion of the Court ter, are purely state in nature. See, e.g., Dept. of Justice, Bureau of Justice Statistics, (FY 2008 Persons arrested and booked, Drug offense: Marijuana), http://bjs.ojp.usdoj.gov/ fjsrc; Dept. of Justice, Federal Bureau of Investigation, 2008 Crime in the United States (Arrests), http:// www2.fbi.gov/ucr/cius2008/arrests/index.html; (Table 29), http://www2.fbi.gov/ucr/cius2008/data/table_29.html (In 2008, 0.7% of arrests for marijuana offenses were made by federal law enforcement officers); see also Jones v. United States, 529 U.S. 848, 858 (2000) (“[U]nless Con gress conveys its purpose clearly, it will not be deemed to have significantly changed the federal-state balance in the prosecution of crimes” (internal quotation marks omitted)). The defendant argues that we should fashion a standard based on the third word, the word “likely.” And we agree that doing so is consistent with the statute’s language and objectives. We consequently hold that (in a case such as this one where the defendant does not have particular federal law enforcement officers in mind) the Government must show a reasonable likelihood that, had, e.g., the victim communicated with law enforcement officers, at least one relevant communication would have been made to a federal law enforcement officer. That is to say, where the defendant kills a person with an intent to prevent communication with law enforcement officers generally, that intent includes an intent to prevent communications with federal law enforcement officers only if it is reasona bly likely under the circumstances that (in the absence of the killing) at least one of the relevant communications would have been made to a federal officer. The Government need not show that such a communica tion, had it occurred, would have been federal beyond a reasonable doubt, nor even that it is more likely than not. For, as we have said, one can act with an intent to prevent an event from occurring without it being true beyond a 10 FOWLER v. UNITED STATES Opinion of the Court reasonable doubt (or even more likely than not) that the event would otherwise occur. (Recall the homeowner who closes his shutters in order to prevent damage from a hurricane that may not happen. Supra, at 5–6.) But the Government must show that the likelihood of communica tion to a federal officer was more than remote, outlandish, or simply hypothetical. Jones, who kills Smith to prevent his communicating with law enforcement officers in gen eral, does not kill Smith to prevent his communicating with Lithuanian law enforcement officers, for there is no reasonable likelihood that any Lithuanian officers would become involved. V Fowler argues that the evidence in this case is insuf ficient to satisfy a “reasonable likelihood” standard. He concedes, however, that he did not raise this question specifically at trial. Tr. of Oral Arg. 21–22. We leave it to the lower courts to determine whether, and how, the standard applies in this particular case. The judgment of the Court of Appeals for the Eleventh Circuit is vacated, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Cite as: 563 U. S. ____ (2011) 1 SCALIA, J., concurring in judgment SUPREME COURT OF THE UNITED STATES _________________ No. 10–5443 _________________ CHARLES ANDREW FOWLER, AKA MAN, PETITIONER v. UNITED STATES ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT [May 26, 2011] JUSTICE SCALIA, concurring in the judgment.	The federal witness tampering statute makes it a crime “to kill another person, with intent to prevent the communication by any person to a law enforcement officer of the United States” of “information relating to the possible commission of a Federal offense.” 18 U.S. C. We focus on instances where a defendant killed a person with an intent to prevent that person from communicating with law enforcement officers in general but where the defendant did not have federal law en forcement officers (or any specific individuals) particularly in mind. The question before us concerns what, if any thing, the Government must show beyond this broad in definite intent in order to show that the defendant more particularly intended to prevent communication with federal officers as well. We hold that, in such circum stances, the Government must show that there was a reasonable likelihood that a relevant communication would have been made to a federal officer. I In the early morning hours of March 3, 1998, Charles 2 FOWLER v. UNITED STATES Opinion of the Court Fowler and several other men prepared to rob a Florida bank. They met in a cemetery, put on black clothes and gloves, began to drink and use drugs, and discussed the proposed crime. Shortly before daybreak a local police officer, Todd Horner, came upon the group. He pulled out his gun and asked the men to identify themselves. Fowler and some of the others managed to overcome Horner and take his gun. After Horner spoke to one of the men by name, Fowler said, “Now we can’t walk away from this thing.” App. 38 (internal quotation marks omitted). And he shot and killed Horner. Federal authorities charged Fowler with violating the federal witness tampering statute. He was convicted. On appeal, Fowler argued that the evidence was insufficient to show that he had killed Horner intending to prevent Horner from communicating with a federal officer. The Eleventh Circuit disagreed. It held that a showing of a “possible or potential communication to federal authori ties” was sufficient. Fowler sought certiorari. And because the Circuits have disagreed about this last-mentioned matter, we granted Fowler’s petition for certiorari. Compare United States v. Harris, (“So long as the information the defendant seeks to suppress actually relates to the commission or possible commission of a federal offense, the federal nexus requirement is estab lished”), with United 91–92 (CA2 2004), vacated and remanded on other grounds, 544 U.S. 902 (2005) (requiring Government to show federal crime along with “ ‘additional appropriate evidence’ ” that “the victim plausibly might have turned to federal offi cials”); see also United (CA3 1997); United 422– 423 (CA5 1999); United 824–825 (CA8 2008). Cite as: 563 U. S. (2011) 3 Opinion of the Court II The federal witness tampering statute in relevant part forbids the “kill[ing] or attempt[ed] kill[ing]” of “another person” with a certain “intent,” namely, an “intent to prevent the communication by any per son to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense” 18 U.S. C. A related subsection says that in a prosecution for this offense “no state of mind need be proved with respect to the circumstance that the judge is a judge of the United States or that the law enforcement officer is an officer or employee of the Federal Government” This language makes clear that in a prosecution the Gov ernment must prove (1) a killing or attempted killing, (2) committed with a particular intent, namely, an intent (a) to “prevent” a “communication” (b) about “the commission or possible commission of a Federal offense” (c) to a federal “law enforcement officer or judge.” The question here is how this language applies when a defendant (1) kills a victim, (2) with an intent (a) to pre vent a communication (b) about the commission or possi ble commission of a federal offense but (c) to law enforce ment officers in general rather than to some specific law enforcement officer or set of officers which the defendant has in mind. This kind of circumstance is not necessarily rare, as the facts here illustrate. Fowler (we here assume) was not thinking specifically about federal officers, but he would nonetheless have wanted to prevent communication with federal officers from taking place (had he considered the matter). 4 FOWLER v. UNITED STATES Opinion of the Court III When the defendant has in mind a particular individual or a particular set of individuals with whom he fears the victim might communicate, the application of the statute is relatively clear. For instance, if a defendant kills a victim with the intent of preventing the victim from com municating with a particular individual, say John Smith, who the defendant knows is a federal law enforcement officer, the statute fits like a glove. If a defendant kills a victim with the intent of preventing the victim from com municating with Sam Smith, who is in fact (but who the defendant does not know is) a federal law enforcement officer, the statute still fits, for it specifically says that “no state of mind need be proved” with respect to this last mentioned circumstance. Nothing in the statutory language, however, limits it to these kinds of instances, instances in which the defendant has some law enforcement officer or set of officers, or other identifiable individuals, particularly in mind. Moreover, any such limitation would conflict with the statute’s basic purpose. Witness tampering may prove more serious (and more effective) when the crime takes place before the victim has engaged in any communication at all with law enforcement officers—at a time when the precise commu nication and nature of the officer who may receive it are not yet known. Cf., e.g., S. Rep. No. 97–532, pp. 14, 15 (1982) (statute applies “to offenses against witnesses, victims, or informants which occur before the witness testifies or the informant communicates with law en forcement officers”); (witness “[i]ntimidation offenses are particularly insidious and do violence to traditional notions of justice because no one can be con victed of a crime which is not reported. [Section 1512] reaches intimidation offenses committed before a crime is reported to the appropriate authorities”). Hence the stat ute covers a defendant who kills with intent to prevent Cite as: 563 U. S. (2011) 5 Opinion of the Court communication with law enforcement officers generally (i.e., with any and all law enforcement officers). And we must consequently decide what, if anything, the Govern ment must show about the likelihood of a hypothetical communication with a federal law enforcement officer in circumstances where the defendant did not think specifi cally about any particular communication or its recipient. In these circumstances, the application of the statute is not as simple. We cannot determine whether the individ ual the defendant had in mind is in fact a federal officer, because the defendant did not have a particular individual in mind. And we cannot insist that the defendant have had some general thought about federal officers in mind because the statute says that “no state of mind need be proved” in respect to the federal nature of the communica tion’s recipient. What, then, must the Gov ernment show to prove that such a defendant intended to prevent communications to federal officers? We begin with two basic propositions. First, in our view, the Government need not show beyond a reasonable doubt (or even that it is more likely than not) that the hypothetical communication would have been to a federal officer. No Circuit has adopted this interpretation, and no party argues for it here. But see post, at 1–2 (SCALIA, J., concurring in judgment). And for good reason: The rele vant question concerns the defendant’s intent. The Gov ernment will already have shown beyond a reasonable doubt that the defendant possessed the relevant broad indefinite intent, namely, the intent to prevent the victim from communicating with (unspecified) law enforcement officers. And one can possess an intent (i.e., one can act in order to bring about a certain state of affairs) even if there is considerable doubt whether the event that the intent contemplates will in fact occur. One can, for example, put up shutters with the intent of protecting the furniture from hurricane damage even if there is considerable doubt 6 FOWLER v. UNITED STATES Opinion of the Court that any hurricane will actually occur. One can drive to Fenway Park with the intent of seeing the Red Sox play that afternoon even if a mistake about the date means the stadium is empty. One can blow up a bridge with the intent of stopping an advancing army, even if the army advances regardless, along a different route. And, simi larly, a defendant can kill a victim with an intent to prevent the victim from communicating with federal law enforcement officers even if there is some considerable doubt that any such communication would otherwise have taken place. But, second, the Government must show more than the broad indefinite intent we have described, the intent to prevent communications to law enforcement officers in general. That is so for two separate reasons. For one thing, the statute speaks of an “intent to prevent” some thing. But (apart from mistakes, as in our Red Sox exam ple) one cannot act with an “intent to prevent” something that could not possibly have taken place regardless. We can speak of a Colorado trout fisherman who tries to prevent his trout stream from being invaded by pike or carp, but in ordinary circumstances we cannot speak about trying to prevent the stream’s invasion by whales. Indeed, the dictionary defines “prevent” as “to render (an intended, possible, or likely action or event) impractical or impossible by anticipatory action.” OED Online (Mar. 2011) (emphasis added), http://www.oed.com/view/Entry/ 151073?rskey=QWN6QB&result=2&isAdvanced=false (all Internet materials as visited May 23, 2011, and available in Clerk of Court’s case file). For another thing, to allow the Government to show no more than the broad indefinite intent we have described (the intent to prevent communications to law enforcement officers in general) would bring within the scope of this statute many instances of witness tampering in purely state investigations and proceedings, thus extending the Cite as: 563 U. S. (2011) 7 Opinion of the Court scope of this federal statute well beyond the primarily federal area that Congress had in mind. See infra, at 8–9. For both these reasons, unlike the dissent, we cannot read the statute as intending to excuse the Government from proving something about the hypothetical communication with federal officers. The question remains, what is that something? IV We find possible answers to this question in the diction ary definition of the word “prevent.” As we have said, that word applies where a defendant, by “anticipatory action,” (here, killing a victim) intended “to render impractical or impossible” an “action or event” (here, the victim’s communication with a federal law enforcement officer) which (1) was “intended,” (2) was “possible,” or (3) was “likely” to have otherwise occurred. No one suggests that the first word, the word “in tended,” sets forth the appropriate standard. That word in this context refers to the victim’s intent. That intent is often difficult to discern. Moreover, to require the Gov ernment to prove it would prevent the statute from apply ing where it is plain that federal officers would have been involved in investigating and prosecuting the offense (for instance, robbing the United States Bullion Depository at Fort Knox), but where the defendant killed the victim before the victim had decided to communicate to law enforcement officers. Congress, however, intended the statute to apply in these last-mentioned circumstances. See The Government (and the Eleventh Circuit) would rest their standard on the second word, the word “possible.” See Brief for United States 10 (standard is “whether it was reasonably possible that at least one of the communi cations that the murder was intended to prevent would have been with a federal law enforcement official”); 603 8 FOWLER v. UNITED STATES Opinion of the Court F. 3d, at (requiring showing of a “possible or potential communication to federal authorities”). But, in our view, that standard is difficult to reconcile with the statute’s language and its intended, basically federal, scope. Cf. at 6–7. Often, when a defendant acts in ways that violate state criminal law, some or all of those acts will violate federal criminal law as well. And where a federal crime is at issue, communication with federal law enforcement offi cers is almost always a possibility. Thus, to allow the Government to show only a mere possibility that a com munication would have been with federal officials is to permit the Government to show little more than the possi ble commission of a federal offense. (That is to say, the latter showing by itself would almost automatically show the statutorily necessary connection with a federal law enforcement officer.) The “possibility” standard would thereby weaken or eliminate the independent force of the separate statutory requirement that the defendant, in killing the victim, must intend to prevent communication with one who is “a law enforcement officer or judge of the United States.” 18 U.S. C. (emphasis added); see (defining “law enforcement officer” as “an officer or employee of the Federal Government” (emphasis added)). Cf. 174 (2001) (normally we must give effect “to every clause and word of a statute” (internal quotation marks omit ted)); 140–141 (1994) (expressing particular reluctance to “treat statutory terms” as “surplusage” “when the words describe an ele ment of a criminal offense”). Moreover, because of the frequent overlap between state and federal crimes, the use of a standard based on the word “possible” would transform a federally oriented statute into a statute that would deal with crimes, investi gations, and witness tampering that, as a practical mat Cite as: 563 U. S. (2011) 9 Opinion of the Court ter, are purely state in nature. See, e.g., Dept. of Justice, Bureau of Justice Statistics, (FY 2008 Persons arrested and booked, Drug offense: Marijuana), http://bjs.ojp.usdoj.gov/ fjsrc; Dept. of Justice, Federal Bureau of Investigation, 2008 Crime in the United States (Arrests), http:// www2.fbi.gov/ucr/cius2008/arrests/index.html; (Table 29), http://www2.fbi.gov/ucr/cius2008/data/table_29.html (In 2008, 0.7% of arrests for marijuana offenses were made by federal law enforcement officers); see also Jones v. United States, (“[U]nless Con gress conveys its purpose clearly, it will not be deemed to have significantly changed the federal-state balance in the prosecution of crimes” (internal quotation marks omitted)). The defendant argues that we should fashion a standard based on the third word, the word “likely.” And we agree that doing so is consistent with the statute’s language and objectives. We consequently hold that (in a case such as this one where the defendant does not have particular federal law enforcement officers in mind) the Government must show a reasonable likelihood that, had, e.g., the victim communicated with law enforcement officers, at least one relevant communication would have been made to a federal law enforcement officer. That is to say, where the defendant kills a person with an intent to prevent communication with law enforcement officers generally, that intent includes an intent to prevent communications with federal law enforcement officers only if it is reasona bly likely under the circumstances that (in the absence of the killing) at least one of the relevant communications would have been made to a federal officer. The Government need not show that such a communica tion, had it occurred, would have been federal beyond a reasonable doubt, nor even that it is more likely than not. For, as we have said, one can act with an intent to prevent an event from occurring without it being true beyond a 10 FOWLER v. UNITED STATES Opinion of the Court reasonable doubt (or even more likely than not) that the event would otherwise occur. (Recall the homeowner who closes his shutters in order to prevent damage from a hurricane that may not at 5–6.) But the Government must show that the likelihood of communica tion to a federal officer was more than remote, outlandish, or simply hypothetical. Jones, who kills Smith to prevent his communicating with law enforcement officers in gen eral, does not kill Smith to prevent his communicating with Lithuanian law enforcement officers, for there is no reasonable likelihood that any Lithuanian officers would become involved. V Fowler argues that the evidence in this case is insuf ficient to satisfy a “reasonable likelihood” standard. He concedes, however, that he did not raise this question specifically at trial. Tr. of Oral Arg. 21–22. We leave it to the lower courts to determine whether, and how, the standard applies in this particular case. The judgment of the Court of Appeals for the Eleventh Circuit is vacated, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Cite as: 563 U. S. (2011) 1 SCALIA, J., concurring in judgment SUPREME COURT OF THE UNITED STATES No. 10–5443 CHARLES ANDREW FOWLER, AKA MAN, PETITIONER v. UNITED STATES ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT [May 26, 2011] JUSTICE SCALIA, concurring in the judgment.	1,870
Justice Scalia	concurring	false	Fowler v. United States	2011-05-26	null	https://www.courtlistener.com/opinion/217514/fowler-v-united-states/	https://www.courtlistener.com/api/rest/v3/clusters/217514/	2,011	2010-049	2	7	2	I disagree with the Court’s interpretation of 18 U.S. C. §1512(a)(1)(C). In my view, the Government must prove that the defendant intended to prevent a communication which, had it been made, would beyond a reasonable doubt have been made to a federal law enforcement officer. The Court’s vague “reasonable likelihood” standard has no basis in the statutory text and will serve only to confuse judges and juries. Accordingly, although I agree the case should be remanded for the Eleventh Circuit to consider whether the objection to sufficiency of the evidence was preserved or whether the District Court committed plain error, I would hold that there was insufficient evidence to support Fowler’s conviction. I Section 1512(a)(1)(C) of Title 18 makes it a federal crime “to kill another person, with intent to . . . prevent the communication by any person to a law enforcement officer . . . of the United States of information relating to the commission or possible commission of a Federal offense.” Viewed in isolation, this provision contains an ambiguity: Does the mens rea of the statute include a specific intent to prevent communication to a law enforcement officer of the United States; or is it satisfied by the mere intent to 2 FOWLER v. UNITED STATES SCALIA, J., concurring in judgment prevent communication to a law enforcement officer who happens to be a law enforcement officer of the United States? Happily, a different statutory provision resolves this ambiguity. It states that “no state of mind need be proved with respect to the circumstance . . . that the law enforce ment officer is an officer or employee of the Federal Gov ernment.” §1512(g)(2). This makes clear that the first possibility is wrong, and the second right. But removing the “federal officer” requirement as an element of the statute’s mens rea does not remove it as an element of the actus reus—that is, as an element of the facts that must be proved for conviction. It must be proved, and proved beyond a reasonable doubt, that the communication in tended to be prevented was communication to a federal officer. Thus, if a suspect in an investigation murders an informant to prevent him from talking to authorities, but is unaware that the informant was working for the FBI, the suspect would be guilty: He would have committed a murder with the intention of preventing the informant’s communication to authorities about his criminal activities, and the communication he sought to prevent would neces sarily have been to federal law enforcement. Likewise, a suspect would be guilty if he committed a murder to pre vent a witness from informing law enforcement that he lied on his federal income tax return: He sought to pre vent a communication that would have been made to federal officials, because they alone prosecute federal tax violations. But a suspect who commits a murder with the general intent of preventing law enforcement from learn ing about activities that violate both state and federal law would not be guilty, because the Government would be unable to prove that the communication he sought to prevent necessarily would have been to a federal official. Applying that standard, this is an easy case. There was evidence that Fowler murdered Officer Horner in order Cite as: 563 U. S. ____ (2011) 3 SCALIA, J., concurring in judgment to prevent him from communicating information about Fowler’s criminal activities. But the only evidence prof fered by the Government to establish that the communica tion would have been to a federal law enforcement agent was the fact that a different state police officer, four years later, contacted federal law enforcement about a robbery by Fowler’s confederate—and that only because the state law statute of limitations for the robbery had expired. That is not nearly enough to demonstrate Fowler’s guilt beyond a reasonable doubt. II The Court gives the statute a broader reading than the one I ascribe. The Government can obtain a conviction, it says, so long as it can prove a “reasonable likelihood” that the communication would have been made to a federal law enforcement officer. I know of no precedent for using a “likelihood” standard rather than the “beyond a rea sonable doubt” standard for a finding of fact essential to a criminal conviction; and the justifications the Court presents for that course in the present case are not convincing. The Court maintains that the Government need not show beyond a reasonable doubt that the communication would have been to a federal officer because “[t]he relevant question concerns the defendant’s intent.” Ante, at 5. But that reasoning is directly contrary to §1512(g)(2), which expressly states that the defendant’s intent is not the relevant question with respect to the federal character of law enforcement officer meant to be deprived of the infor mation. The Court’s observation that “a defendant can kill a victim with an intent to prevent the victim from commu nicating with federal law enforcement officers even if there is some considerable doubt that any such communi cation would otherwise have taken place,” ante, at 6, is completely irrelevant to the question presented. 4 FOWLER v. UNITED STATES SCALIA, J., concurring in judgment The Court also proclaims that a narrower view “would conflict with the statute’s basic purpose,” which is to prevent witness tampering “at a time when the precise communication and nature of the officer who may receive it are not yet known.” Ante, at 4. It cites no basis for attributing that purpose, and there is none—other than the fact that it supports the Court’s outcome. Another purpose is just as likely—and indeed more likely, since it can be achieved without abandonment of the ancient rule that in criminal prosecutions facts must be found beyond a reasonable doubt. Murder, after all, is a crime, and often a capital crime, under all state laws. There is no reason to ascribe to Congress the “purpose” of transferring murder prosecutions that would ordinarily be brought in state court to federal court based on only a tangential federal interest. Congress was concerned with preserving the integrity and effectiveness of federal prosecutions, and where they are not clearly involved (as the ordinary be yond-a-reasonable-doubt standard would require) a federal murder prosecution has no proper place. Limited as I have suggested, the federal law would still have ample scope, reaching what were surely the principal cases Con gress had in mind—the killing of prospective witnesses in federal trials or in ongoing federal investigations. Here, as would be the case in many situations involving a merely hypothetical link to a federal investigation, Fowler murdered a state police officer. The natural place to have prosecuted him would have been state court. The Court’s analysis is even less persuasive in light of the rule of lenity, under which we must construe ambigu ous criminal statutes in favor of the defendant. Here, the Court adopts a kind of rule of harshness, discarding the most straightforward construction of the text in favor of textually implausible one, based on vague intuitions about the statute’s purpose. The Court’s opinion never cites the rule of lenity, probably because it cannot honestly say that Cite as: 563 U. S. ____ (2011) 5 SCALIA, J., concurring in judgment the statute is so clear that “there is no ambiguity for the rule of lenity to resolve.” Burgess v. United States, 553 U.S. 124, 136 (2008). To make matters worse, the Court’s standard is hope lessly indeterminate. The Government must show that a communication to a federal officer is “reasonably likely,” which is less likely than “more likely than not,” but more likely than “reasonably possible.” Ante, at 7–9. I doubt that any jury can grasp the distinction between “you must find that a communication to a federal officer was rea sonably likely” and “you must find that a communication to a federal officer was reasonably possible.” Under standably, the Court refuses to give any examples of what “reasonably likely” means, except for an absurd example involving communications with Lithuanian police officers, ante, at 10—which obviously would not be “reasonably possible” either. Indeed, the Court refuses to apply its standard to the facts of this case, leaving that precarious task to the lower court. III The dissent adopts a view of the statute that is even broader than the Government’s. It effectively contends that the Government need not prove anything with respect to the fact that the communication sought to be prevented was “to a law enforcement officer . . . of the United States.” As long as the Government can prove that the defendant sought to prevent the communication of information about a federal crime (including a federal crime that is also a state crime) it will necessarily have proved that the “set of law enforcement officers (whose identities were unknown to him)” he had in mind “included law enforcement officers who were employed by the United States.” Post, at 3 (opinion of ALITO, J.). Conviction requires neither any specific intent regarding the federal status of the officer, nor even any likelihood that a communication to a federal 6 FOWLER v. UNITED STATES SCALIA, J., concurring in judgment officer would have occurred. The principal defect in this interpretation is that it makes the words “of the United States” superfluous. Section 1512(a)(1)(C) specifically requires that the in formation the defendant seeks to prevent from being com municated be “information relating to the commission or possible commission of a Federal offense.” If the phrase “to a law enforcement officer . . . of the United States” requires nothing more than this it is utterly without effect. The implication of this view is that Congress enacted §1512(a)(1)(C)’s reference to “a law enforcement officer . . . of the United States,” only to immediately nullify it by §1512(g)(2)’s “no state of mind” provision. Not likely—and not sound statutory interpretation. The dissent claims that my analysis “confuses what the prosecution must prove with what a rational jury may choose to infer in a particular case.” Post, at 6. I find this contention difficult to understand. In the dissent’s view, a properly instructed jury should be required to find neither that the defendant’s mens rea had any connection to a federal officer, nor that the defendant’s actus reus had any connection to a federal officer. It therefore follows that under the dissent’s view, a properly instructed jury should be required to find nothing about a connection to a federal officer beyond the fact that the information related to a federal offense, which means that, unless the jury is acting irrationally or is engaging in jury nullification, the “of the United States” provision is indeed superfluous. The dis sent is correct that the proof of one element of a crime (such as an overt act) can sometimes be used to prove that a different element (such as a conspiratorial agreement) is satisfied, post, at 6–7, n. 2; but in such cases, the jury is instructed that it is required to make a separate finding to convict (e.g., that a conspiratorial agreement actually occurred). Here, the dissent identifies no separate finding the jury must make beyond the fact of a federal offense. Cite as: 563 U. S. ____ (2011) 7 SCALIA, J., concurring in judgment The dissent also observes that when a defendant murders a federal officer to prevent him from communicating in formation about a nonfederal crime, he does not violate the statute. Post, at 7. This observation convincingly establishes that the statutory words “Federal offense” are not superfluous under the dissent’s view, an observation irrelevant to my point that the dissent makes the statu tory words “of the United States” superfluous. The dissent contends that my interpretation “has no grounding in the language of the statute.” Post, at 4. It asserts that “the text of the statute makes it perfectly clear that the federal officer requirement is exclusively an element of the defendant’s mens rea.” Post, at 5 (internal quotation marks omitted). Perhaps the only thing “per fectly clear” about this statute is that it states the precise opposite of that proposition: “[N]o state of mind need be proved with respect to the circumstance . . . that the law enforcement officer is an officer or employee of the Federal Government.” §1512(g)(2). The dissent’s interpretation would federalize crimes that have no connection to any federal investigation. A person caught by a state police officer with marijuana who murders the state police officer to cover it up could be prosecuted in federal court. That would approach the outer limits of Congress’s enumerated powers. We have adopted a federalism principle that applies when a statute would render “traditionally local criminal conduct . . . a matter for federal enforcement”: “[U]nless Congress con veys its purpose clearly, it will not be deemed to have significantly changed the federal-state balance in the prosecution of crimes.” Jones v. United States, 529 U.S. 848, 858 (2000) (internal quotation marks omitted). Thus, the dissent adds to the Court’s “rule of harshness” a rule of antifederalism, under which a court must actually ignore a federal connection that Congress prescribed so as to avoid intrusion into traditionally local law enforcement. 8 FOWLER v. UNITED STATES SCALIA, J., concurring in judgment * * * Because the Government did not establish that Fowler intended to prevent a communication that, if made, would have been made to a federal law enforcement officer, there was insufficient evidence to convict him of violating §1512(a)(1)(C). Since there remains, however, the ques tion whether Fowler preserved this issue at trial or whether the inadequacy of the evidence constituted plain error, I concur in the Court’s order vacating the judgment and remanding for resolution of that question. Cite as: 563 U. S. ____ (2011) 1 ALITO, J., dissenting SUPREME COURT OF THE UNITED STATES _________________ No. 10–5443 _________________ CHARLES ANDREW FOWLER, AKA MAN, PETITIONER v.	I disagree with the Court’s interpretation of 18 U.S. C. In my view, the Government must prove that the defendant intended to prevent a communication which, had it been made, would beyond a reasonable doubt have been made to a federal law enforcement officer. The Court’s vague “reasonable likelihood” standard has no basis in the statutory text and will serve only to confuse judges and juries. Accordingly, although I agree the case should be remanded for the Eleventh Circuit to consider whether the objection to sufficiency of the evidence was preserved or whether the District Court committed plain error, I would hold that there was insufficient evidence to support Fowler’s conviction. I Section 1512(a)(1)(C) of Title 18 makes it a federal crime “to kill another person, with intent to prevent the communication by any person to a law enforcement officer of the United States of information relating to the commission or possible commission of a Federal offense.” Viewed in isolation, this provision contains an ambiguity: Does the mens rea of the statute include a specific intent to prevent communication to a law enforcement officer of the United States; or is it satisfied by the mere intent to 2 FOWLER v. UNITED STATES SCALIA, J., concurring in judgment prevent communication to a law enforcement officer who happens to be a law enforcement officer of the United States? Happily, a different statutory provision resolves this ambiguity. It states that “no state of mind need be proved with respect to the circumstance that the law enforce ment officer is an officer or employee of the Federal Gov ernment.” This makes clear that the first possibility is wrong, and the second right. But removing the “federal officer” requirement as an element of the statute’s mens rea does not remove it as an element of the actus reus—that is, as an element of the facts that must be proved for conviction. It must be proved, and proved beyond a reasonable doubt, that the communication in tended to be prevented was communication to a federal officer. Thus, if a suspect in an investigation murders an informant to prevent him from talking to authorities, but is unaware that the informant was working for the FBI, the suspect would be guilty: He would have committed a murder with the intention of preventing the informant’s communication to authorities about his criminal activities, and the communication he sought to prevent would neces sarily have been to federal law enforcement. Likewise, a suspect would be guilty if he committed a murder to pre vent a witness from informing law enforcement that he lied on his federal income tax return: He sought to pre vent a communication that would have been made to federal officials, because they alone prosecute federal tax violations. But a suspect who commits a murder with the general intent of preventing law enforcement from learn ing about activities that violate both state and federal law would not be guilty, because the Government would be unable to prove that the communication he sought to prevent necessarily would have been to a federal official. Applying that standard, this is an easy case. There was evidence that Fowler murdered Officer Horner in order Cite as: 563 U. S. (2011) 3 SCALIA, J., concurring in judgment to prevent him from communicating information about Fowler’s criminal activities. But the only evidence prof fered by the Government to establish that the communica tion would have been to a federal law enforcement agent was the fact that a different state police officer, four years later, contacted federal law enforcement about a robbery by Fowler’s confederate—and that only because the state law statute of limitations for the robbery had expired. That is not nearly enough to demonstrate Fowler’s guilt beyond a reasonable doubt. II The Court gives the statute a broader reading than the one I ascribe. The Government can obtain a conviction, it says, so long as it can prove a “reasonable likelihood” that the communication would have been made to a federal law enforcement officer. I know of no precedent for using a “likelihood” standard rather than the “beyond a rea sonable doubt” standard for a finding of fact essential to a criminal conviction; and the justifications the Court presents for that course in the present case are not convincing. The Court maintains that the Government need not show beyond a reasonable doubt that the communication would have been to a federal officer because “[t]he relevant question concerns the defendant’s intent.” Ante, at 5. But that reasoning is directly contrary to which expressly states that the defendant’s intent is not the relevant question with respect to the federal character of law enforcement officer meant to be deprived of the infor mation. The Court’s observation that “a defendant can kill a victim with an intent to prevent the victim from commu nicating with federal law enforcement officers even if there is some considerable doubt that any such communi cation would otherwise have taken place,” ante, at 6, is completely irrelevant to the question presented. 4 FOWLER v. UNITED STATES SCALIA, J., concurring in judgment The Court also proclaims that a narrower view “would conflict with the statute’s basic purpose,” which is to prevent witness tampering “at a time when the precise communication and nature of the officer who may receive it are not yet known.” Ante, at 4. It cites no basis for attributing that purpose, and there is none—other than the fact that it supports the Court’s outcome. Another purpose is just as likely—and indeed more likely, since it can be achieved without abandonment of the ancient rule that in criminal prosecutions facts must be found beyond a reasonable doubt. Murder, after all, is a crime, and often a capital crime, under all state laws. There is no reason to ascribe to Congress the “purpose” of transferring murder prosecutions that would ordinarily be brought in state court to federal court based on only a tangential federal interest. Congress was concerned with preserving the integrity and effectiveness of federal prosecutions, and where they are not clearly involved (as the ordinary be yond-a-reasonable-doubt standard would require) a federal murder prosecution has no proper place. Limited as I have suggested, the federal law would still have ample scope, reaching what were surely the principal cases Con gress had in mind—the killing of prospective witnesses in federal trials or in ongoing federal investigations. Here, as would be the case in many situations involving a merely hypothetical link to a federal investigation, Fowler murdered a state police officer. The natural place to have prosecuted him would have been state court. The Court’s analysis is even less persuasive in light of the rule of lenity, under which we must construe ambigu ous criminal statutes in favor of the defendant. Here, the Court adopts a kind of rule of harshness, discarding the most straightforward construction of the text in favor of textually implausible one, based on vague intuitions about the statute’s purpose. The Court’s opinion never cites the rule of lenity, probably because it cannot honestly say that Cite as: 563 U. S. (2011) 5 SCALIA, J., concurring in judgment the statute is so clear that “there is no ambiguity for the rule of lenity to resolve.” Burgess v. United States, 553 U.S. 124, 136 (2008). To make matters worse, the Court’s standard is hope lessly indeterminate. The Government must show that a communication to a federal officer is “reasonably likely,” which is less likely than “more likely than not,” but more likely than “reasonably possible.” Ante, at 7–9. I doubt that any jury can grasp the distinction between “you must find that a communication to a federal officer was rea sonably likely” and “you must find that a communication to a federal officer was reasonably possible.” Under standably, the Court refuses to give any examples of what “reasonably likely” means, except for an absurd example involving communications with Lithuanian police officers, ante, at 10—which obviously would not be “reasonably possible” either. Indeed, the Court refuses to apply its standard to the facts of this case, leaving that precarious task to the lower court. III The dissent adopts a view of the statute that is even broader than the Government’s. It effectively contends that the Government need not prove anything with respect to the fact that the communication sought to be prevented was “to a law enforcement officer of the United States.” As long as the Government can prove that the defendant sought to prevent the communication of information about a federal crime (including a federal crime that is also a state crime) it will necessarily have proved that the “set of law enforcement officers (whose identities were unknown to him)” he had in mind “included law enforcement officers who were employed by the United States.” Post, at 3 (opinion of ALITO, J.). Conviction requires neither any specific intent regarding the federal status of the officer, nor even any likelihood that a communication to a federal 6 FOWLER v. UNITED STATES SCALIA, J., concurring in judgment officer would have occurred. The principal defect in this interpretation is that it makes the words “of the United States” superfluous. Section 1512(a)(1)(C) specifically requires that the in formation the defendant seeks to prevent from being com municated be “information relating to the commission or possible commission of a Federal offense.” If the phrase “to a law enforcement officer of the United States” requires nothing more than this it is utterly without effect. The implication of this view is that Congress enacted reference to “a law enforcement officer of the United States,” only to immediately nullify it by “no state of mind” provision. Not likely—and not sound statutory interpretation. The dissent claims that my analysis “confuses what the prosecution must prove with what a rational jury may choose to infer in a particular case.” Post, at 6. I find this contention difficult to understand. In the dissent’s view, a properly instructed jury should be required to find neither that the defendant’s mens rea had any connection to a federal officer, nor that the defendant’s actus reus had any connection to a federal officer. It therefore follows that under the dissent’s view, a properly instructed jury should be required to find nothing about a connection to a federal officer beyond the fact that the information related to a federal offense, which means that, unless the jury is acting irrationally or is engaging in jury nullification, the “of the United States” provision is indeed superfluous. The dis sent is correct that the proof of one element of a crime (such as an overt act) can sometimes be used to prove that a different element (such as a conspiratorial agreement) is satisfied, post, at 6–7, n. 2; but in such cases, the jury is instructed that it is required to make a separate finding to convict (e.g., that a conspiratorial agreement actually occurred). Here, the dissent identifies no separate finding the jury must make beyond the fact of a federal offense. Cite as: 563 U. S. (2011) 7 SCALIA, J., concurring in judgment The dissent also observes that when a defendant murders a federal officer to prevent him from communicating in formation about a nonfederal crime, he does not violate the statute. Post, at 7. This observation convincingly establishes that the statutory words “Federal offense” are not superfluous under the dissent’s view, an observation irrelevant to my point that the dissent makes the statu tory words “of the United States” superfluous. The dissent contends that my interpretation “has no grounding in the language of the statute.” Post, at 4. It asserts that “the text of the statute makes it perfectly clear that the federal officer requirement is exclusively an element of the defendant’s mens rea.” Post, at 5 (internal quotation marks omitted). Perhaps the only thing “per fectly clear” about this statute is that it states the precise opposite of that proposition: “[N]o state of mind need be proved with respect to the circumstance that the law enforcement officer is an officer or employee of the Federal Government.” The dissent’s interpretation would federalize crimes that have no connection to any federal investigation. A person caught by a state police officer with marijuana who murders the state police officer to cover it up could be prosecuted in federal court. That would approach the outer limits of Congress’s enumerated powers. We have adopted a federalism principle that applies when a statute would render “traditionally local criminal conduct a matter for federal enforcement”: “[U]nless Congress con veys its purpose clearly, it will not be deemed to have significantly changed the federal-state balance in the prosecution of crimes.” Jones v. United States, 529 U.S. 848, 858 (2000) (internal quotation marks omitted). Thus, the dissent adds to the Court’s “rule of harshness” a rule of antifederalism, under which a court must actually ignore a federal connection that Congress prescribed so as to avoid intrusion into traditionally local law enforcement. 8 FOWLER v. UNITED STATES SCALIA, J., concurring in judgment * * * Because the Government did not establish that Fowler intended to prevent a communication that, if made, would have been made to a federal law enforcement officer, there was insufficient evidence to convict him of violating Since there remains, however, the ques tion whether Fowler preserved this issue at trial or whether the inadequacy of the evidence constituted plain error, I concur in the Court’s order vacating the judgment and remanding for resolution of that question. Cite as: 563 U. S. (2011) 1 ALITO, J., dissenting SUPREME COURT OF THE UNITED STATES No. 10–5443 CHARLES ANDREW FOWLER, AKA MAN, PETITIONER v.	1,871
Justice Alito	dissenting	false	Fowler v. United States	2011-05-26	null	https://www.courtlistener.com/opinion/217514/fowler-v-united-states/	https://www.courtlistener.com/api/rest/v3/clusters/217514/	2,011	2010-049	2	7	2	The decision of the Court fails to follow the clear lan guage of 18 U.S. C. §1512(a)(1)(C). Instead of heeding the statutory text, the Court has effectively amended the statute by adding a new element. I As relevant here, §1512(a)(1)(C) makes it a federal crime “to kill another person, with intent to . . . prevent the communication by any person to a law enforcement officer . . . of the United States of information relating to the commission or possible commission of a Federal offense.” Also important for present purposes is §1512(g)(2), which provides, among other things, that “[i]n a prosecution for an offense under this section, no state of mind need be proved with respect to the circumstance . . . that the law enforcement officer is an officer or employee of the Federal Government.” Putting these two provisions together, what had to be shown in the present case was as follows: (1) Fowler killed Officer Horner, (2) with the intent to prevent any person (i.e., either Offi cer Horner or someone else) from communicating, (3) to a person who (whether or not known as such to 2 FOWLER v. UNITED STATES ALITO, J., dissenting Fowler) was a federal law enforcement officer, (4) information concerning the possible commission of a federal crime. The question before us is whether there was sufficient evidence to support Fowler’s conviction, and thus we must ask whether any rational jury could find that all of the elements noted above were adequately established. See United States v. Powell, 469 U.S. 57, 67 (1984). There can be no dispute that there was sufficient evi dence to establish elements (1), (2), and (4). That is, there was ample evidence to show (1) that Fowler killed Officer Horner, (2) that he did so with the intent to prevent the communication of information about what Officer Horner had seen, and (4) that this information concerned the possible commission of at least one federal crime—for example, conspiracy to rob a bank in violation of 18 U.S. C. §§371, 2113. Thus, the only remaining question is whether there was enough evidence to permit a rational jury to infer that element (3) had been satisfied. And in connection with this question, it is important to keep in mind three things that element (3) does not require. First, element (3) does not demand proof that Officer Horner, had he not been killed, would have reported—or even might have reported—what he saw to anyone, much less to a federal officer. Element (3) is solely concerned with a defendant’s intent. Second, while element (3) requires proof that Fowler intended to prevent some law enforcement officer from learning what Officer Horner had seen, element (3) does not require proof that Fowler had any particular law enforcement officer in mind. Section 1512(a)(1)(C) simply demands that the recipient of the information be “a law enforcement officer.” Thus, it would be enough if Fowler’s intent was to prevent Officer Horner’s information from reaching any federal law enforcement officer. Cite as: 563 U. S. ____ (2011) 3 ALITO, J., dissenting Third, element (3) does not demand proof that Fowler knew that the generic officer noted above was a federal, as opposed to a state or local, law enforcement officer. Sec tion 1512(g)(2) specifically rules out any such requirement. It is enough that our generic officer was in fact a federal officer. When the meaning of element (3) is understood, it is clear that the decision of the Court of Appeals in this case must be affirmed. A rational jury could infer that Fowler’s intent was to prevent information about what Officer Horner had seen from reaching any person who could bring about his arrest and conviction. In other words, a rational jury could infer that Fowler, in effect, had in mind a set of law enforcement officers (whose identities were unknown to him) who could set in motion a chain of events that would land him in prison. And since the information that Officer Horner possessed related to, among other things, the possible commission of a federal crime, a ra tional jury could infer that this group included law en forcement officers who were employed by the United States. The question presented in this case is as simple as that. II The Court begins on the right track, observing that the “relevant question concerns the defendant’s intent” and that therefore “the Government need not show beyond a reasonable doubt (or even that it is more likely than not) that the hypothetical communication would have been to a federal officer.” Ante, at 5 (emphasis in original). But the Court veers off course when it goes on to hold that the prosecution was required to show that, if Officer Horner had not been killed, there was a “reasonable likelihood” that his information would have reached a federal officer. Ante, at 9 (emphasis in original). The Court reaches this conclusion based on the meaning 4 FOWLER v. UNITED STATES ALITO, J., dissenting of the word “prevent.” See ante, at 6–10. The Court starts with the proposition that “apart from mistakes . . . one cannot act with an ‘intent to prevent’ something that could not possibly have taken place regardless.” Ante, at 6 (emphasis in original). I understand this to mean that a rational person will not take action to prevent something that the person knows is not possible. This is true, but it does not follow that a rational person will not take action to prevent an undesirable event unless the event is “rea sonably likely.” Risk-averse people do this all the time. They refrain from flying to avoid dying in a plane crash. They shun rooms on the upper floors of hotels to prevent being trapped in the event of a fire. What matters under §1512(a)(1)(C) is not the likelihood that information about a possible federal crime will be conveyed to a federal officer. What matters is the intent of the person who kills or attempts to kill in order to pre vent that information from reaching such an officer. The Court’s “reasonable likelihood” test has no basis in the text of §1512(a)(1)(C). The Court’s test also makes little sense. Under this test, the application of §1512(a)(1)(C) depends on a witness killer’s toleration of risk. According to the Court, §1512(a)(1)(C) does not reach a killer who has so little regard for human life that he or she is willing to murder in order to prevent even a remote possibility that a witness will inform the authorities. It is hard to imagine why Congress would have wanted to draw this line. III JUSTICE SCALIA’s interpretation of §1512(a)(1)(C) also has no grounding in the language of the statute. He makes the fundamental mistake of confusing §1512(a) (1)(C)’s mens rea and actus reus elements. JUSTICE SCALIA states that what he terms “the ‘federal officer’ requirement” is “an element of the actus reus,” ante, at 2 Cite as: 563 U. S. ____ (2011) 5 ALITO, J., dissenting (opinion concurring in judgment), but the text of the statute makes it perfectly clear that “the ‘federal officer’ requirement” is exclusively an element of the defendant’s mens rea. The statute provides: “(a)(1) Whoever kills or attempts to kill another person, with intent to— . . . . . “(C) prevent the communication by any person to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense or a violation of con ditions of probation, parole, or release pending judicial proceedings; “shall be punished as provided in paragraph (3).” §1512(a)(1)(C) (emphasis added). The actus reus of this provision is set out in its first eight words (“Whoever kills or attempts to kill another person”). Everything else—that is, everything that follows the phrase “with intent to”—concerns the defendant’s mens rea. JUSTICE SCALIA interprets §1512(g)(2) as transforming “the ‘federal officer’ requirement” from an element of the mens rea into an element of the actus reus, see ante, at 2–3, but this reading is plainly wrong. Section 1512(g)(2) provides in relevant part: “In a prosecution for an offense under [18 U.S. C. §1512], no state of mind need be proved with re- spect to the circumstance . . . that the law enforcement officer is an officer or employee of the Federal Government.” What this clearly means, as the Court recognizes, see ante, at 4, is simply that a defendant need not intend to prevent a qualifying communication from reaching an 6 FOWLER v. UNITED STATES ALITO, J., dissenting officer whom the defendant knows to be a federal, as op posed to a state or local law enforcement officer. But noth ing in this provision adds to the actus reus elements in §1512(a)(1)(C). JUSTICE SCALIA’s principal criticism of my interpreta tion of the statute is that “it makes the words ‘of the United States’ superfluous.” Ante, at 6.1 He incorrectly states that under my interpretation “the Government need not prove anything with respect to the fact that the com munication sought to be prevented was ‘to a law enforce ment officer . . . of the United States’ ” and that “[a]s long as the Government can prove that the defendant sought to prevent the communication of information about a federal crime (including a federal crime that is also a state crime) it will necessarily have proved that [the set of officers whom the defendant had in mind] ‘included law enforce ment officers who were employed by the United States.’ ” Ante, at 5 (emphasis in original). This description of my interpretation confuses what the prosecution must prove with what a rational jury may choose to infer in a particu lar case. In order to violate §1512(a)(1)(C), a defendant must have an intent regarding two things: first, the substance of the communication that the defendant wishes to prevent (information concerning, among other things, the commis sion or possible commission of a federal crime) and, sec ond, the recipient of the communication (a law enforce ment officer or judge who turns out to be a federal officer or judge). It is true that evidence regarding the federal character of an offense may lead a rational jury to infer that the officers whom the defendant had in mind included federal officers.2 But those two elements remain distinct; both —————— 1 The Court makes a related argument. See ante, at 8. 2 There is nothing unusual about the proposition that the proof of one Cite as: 563 U. S. ____ (2011) 7 ALITO, J., dissenting must be proved beyond a reasonable doubt; and it is en tirely possible for a defendant to satisfy one without also satisfying the other. For example, if a uniformed federal officer came upon a defendant during the commission of a purely state offense (for example, a murder, assault, or rape not committed in a federal enclave), the defendant might kill or attempt to kill the officer to prevent the officer from radioing in that information to the officer’s superiors. This defendant would have the intent to pre vent a communication to a federal officer, but there would be no violation of the statute because the information would not concern a federal crime. Thus, contrary to JUSTICE SCALIA’s suggestion, under my interpretation, the two intent elements—relating to the substance of the feared communication and the identity of the feared re cipient—are not redundant. JUSTICE SCALIA invokes a rule that disfavors the inter pretation of a federal criminal statute in a way that “ ‘significantly change[s] the federal-state balance in the prosecution of crimes.’ ”3 Ante, at 7 (quoting Jones v. United States, 529 U.S. 848, 858 (2000)). This rule, how ever, does not justify ignoring the plain terms of the statute. * * * The Court has effectively amended §1512(a)(1)(C) by adding an element that is nowhere to be found in the text of the statute. And the Court’s new element makes little sense and will create confusion for trial judges and juries. —————— element of a crime may provide a sufficient basis for inferring that another element may be satisfied. To take a common example, overt acts committed in furtherance of a conspiracy may be sufficient to permit a jury to infer that a conspiratorial agreement was reached. But that does not alter the need to prove beyond a reasonable doubt that such an agreement was reached. 3 The Court again makes a related argument. See ante, at 8–9. 8 FOWLER v. UNITED STATES ALITO, J., dissenting Following the language of §1512(a)(1)(C), I would hold that the evidence in this case was sufficient to establish all of the elements that Congress saw fit to include. I there fore respectfully dissent	The decision of the Court fails to follow the clear lan guage of 18 U.S. C. Instead of heeding the statutory text, the Court has effectively amended the statute by adding a new element. I As relevant here, makes it a federal crime “to kill another person, with intent to prevent the communication by any person to a law enforcement officer of the United States of information relating to the commission or possible commission of a Federal offense.” Also important for present purposes is which provides, among other things, that “[i]n a prosecution for an offense under this section, no state of mind need be proved with respect to the circumstance that the law enforcement officer is an officer or employee of the Federal Government.” Putting these two provisions together, what had to be shown in the present case was as follows: (1) Fowler killed Officer Horner, (2) with the intent to prevent any person (i.e., either Offi cer Horner or someone else) from communicating, (3) to a person who (whether or not known as such to 2 FOWLER v. UNITED STATES ALITO, J., dissenting Fowler) was a federal law enforcement officer, (4) information concerning the possible commission of a federal crime. The question before us is whether there was sufficient evidence to support Fowler’s conviction, and thus we must ask whether any rational jury could find that all of the elements noted above were adequately established. See United There can be no dispute that there was sufficient evi dence to establish elements (1), (2), and (4). That is, there was ample evidence to show (1) that Fowler killed Officer Horner, (2) that he did so with the intent to prevent the communication of information about what Officer Horner had seen, and (4) that this information concerned the possible commission of at least one federal crime—for example, conspiracy to rob a bank in violation of 18 U.S. C. 2113. Thus, the only remaining question is whether there was enough evidence to permit a rational jury to infer that element (3) had been satisfied. And in connection with this question, it is important to keep in mind three things that element (3) does not require. First, element (3) does not demand proof that Officer Horner, had he not been killed, would have reported—or even might have reported—what he saw to anyone, much less to a federal officer. Element (3) is solely concerned with a defendant’s intent. Second, while element (3) requires proof that Fowler intended to prevent some law enforcement officer from learning what Officer Horner had seen, element (3) does not require proof that Fowler had any particular law enforcement officer in mind. Section 1512(a)(1)(C) simply demands that the recipient of the information be “a law enforcement officer.” Thus, it would be enough if Fowler’s intent was to prevent Officer Horner’s information from reaching any federal law enforcement officer. Cite as: 563 U. S. (2011) 3 ALITO, J., dissenting Third, element (3) does not demand proof that Fowler knew that the generic officer noted above was a federal, as opposed to a state or local, law enforcement officer. Sec tion 1512(g)(2) specifically rules out any such requirement. It is enough that our generic officer was in fact a federal officer. When the meaning of element (3) is understood, it is clear that the decision of the Court of Appeals in this case must be affirmed. A rational jury could infer that Fowler’s intent was to prevent information about what Officer Horner had seen from reaching any person who could bring about his arrest and conviction. In other words, a rational jury could infer that Fowler, in effect, had in mind a set of law enforcement officers (whose identities were unknown to him) who could set in motion a chain of events that would land him in prison. And since the information that Officer Horner possessed related to, among other things, the possible commission of a federal crime, a ra tional jury could infer that this group included law en forcement officers who were employed by the United States. The question presented in this case is as simple as that. II The Court begins on the right track, observing that the “relevant question concerns the defendant’s intent” and that therefore “the Government need not show beyond a reasonable doubt (or even that it is more likely than not) that the hypothetical communication would have been to a federal officer.” Ante, at 5 (emphasis in original). But the Court veers off course when it goes on to hold that the prosecution was required to show that, if Officer Horner had not been killed, there was a “reasonable likelihood” that his information would have reached a federal officer. Ante, at 9 (emphasis in original). The Court reaches this conclusion based on the meaning 4 FOWLER v. UNITED STATES ALITO, J., dissenting of the word “prevent.” See ante, at 6–10. The Court starts with the proposition that “apart from mistakes one cannot act with an ‘intent to prevent’ something that could not possibly have taken place regardless.” Ante, at 6 (emphasis in original). I understand this to mean that a rational person will not take action to prevent something that the person knows is not possible. This is true, but it does not follow that a rational person will not take action to prevent an undesirable event unless the event is “rea sonably likely.” Risk-averse people do this all the time. They refrain from flying to avoid dying in a plane crash. They shun rooms on the upper floors of hotels to prevent being trapped in the event of a fire. What matters under is not the likelihood that information about a possible federal crime will be conveyed to a federal officer. What matters is the intent of the person who kills or attempts to kill in order to pre vent that information from reaching such an officer. The Court’s “reasonable likelihood” test has no basis in the text of The Court’s test also makes little sense. Under this test, the application of depends on a witness killer’s toleration of risk. According to the Court, does not reach a killer who has so little regard for human life that he or she is willing to murder in order to prevent even a remote possibility that a witness will inform the authorities. It is hard to imagine why Congress would have wanted to draw this line. III JUSTICE SCALIA’s interpretation of also has no grounding in the language of the statute. He makes the fundamental mistake of confusing (1)(C)’s mens rea and actus reus elements. JUSTICE SCALIA states that what he terms “the ‘federal officer’ requirement” is “an element of the actus reus,” ante, at 2 Cite as: 563 U. S. (2011) 5 ALITO, J., dissenting (opinion concurring in judgment), but the text of the statute makes it perfectly clear that “the ‘federal officer’ requirement” is exclusively an element of the defendant’s mens rea. The statute provides: “(a)(1) Whoever kills or attempts to kill another person, with intent to— “(C) prevent the communication by any person to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense or a violation of con ditions of probation, parole, or release pending judicial proceedings; “shall be punished as provided in paragraph (3).” (emphasis added). The actus reus of this provision is set out in its first eight words (“Whoever kills or attempts to kill another person”). Everything else—that is, everything that follows the phrase “with intent to”—concerns the defendant’s mens rea. JUSTICE SCALIA interprets as transforming “the ‘federal officer’ requirement” from an element of the mens rea into an element of the actus reus, see ante, at 2–3, but this reading is plainly wrong. Section 1512(g)(2) provides in relevant part: “In a prosecution for an offense under [18 U.S. C. no state of mind need be proved with re- spect to the circumstance that the law enforcement officer is an officer or employee of the Federal Government.” What this clearly means, as the Court recognizes, see ante, at 4, is simply that a defendant need not intend to prevent a qualifying communication from reaching an 6 FOWLER v. UNITED STATES ALITO, J., dissenting officer whom the defendant knows to be a federal, as op posed to a state or local law enforcement officer. But noth ing in this provision adds to the actus reus elements in JUSTICE SCALIA’s principal criticism of my interpreta tion of the statute is that “it makes the words ‘of the United States’ superfluous.” Ante, at 6.1 He incorrectly states that under my interpretation “the Government need not prove anything with respect to the fact that the com munication sought to be prevented was ‘to a law enforce ment officer of the United States’ ” and that “[a]s long as the Government can prove that the defendant sought to prevent the communication of information about a federal crime (including a federal crime that is also a state crime) it will necessarily have proved that [the set of officers whom the defendant had in mind] ‘included law enforce ment officers who were employed by the United States.’ ” Ante, at 5 (emphasis in original). This description of my interpretation confuses what the prosecution must prove with what a rational jury may choose to infer in a particu lar case. In order to violate a defendant must have an intent regarding two things: first, the substance of the communication that the defendant wishes to prevent (information concerning, among other things, the commis sion or possible commission of a federal crime) and, sec ond, the recipient of the communication (a law enforce ment officer or judge who turns out to be a federal officer or judge). It is true that evidence regarding the federal character of an offense may lead a rational jury to infer that the officers whom the defendant had in mind included federal officers.2 But those two elements remain distinct; both —————— 1 The Court makes a related argument. See ante, at 8. 2 There is nothing unusual about the proposition that the proof of one Cite as: 563 U. S. (2011) 7 ALITO, J., dissenting must be proved beyond a reasonable doubt; and it is en tirely possible for a defendant to satisfy one without also satisfying the other. For example, if a uniformed federal officer came upon a defendant during the commission of a purely state offense (for example, a murder, assault, or rape not committed in a federal enclave), the defendant might kill or attempt to kill the officer to prevent the officer from radioing in that information to the officer’s superiors. This defendant would have the intent to pre vent a communication to a federal officer, but there would be no violation of the statute because the information would not concern a federal crime. Thus, contrary to JUSTICE SCALIA’s suggestion, under my interpretation, the two intent elements—relating to the substance of the feared communication and the identity of the feared re cipient—are not redundant. JUSTICE SCALIA invokes a rule that disfavors the inter pretation of a federal criminal statute in a way that “ ‘significantly change[s] the federal-state balance in the prosecution of crimes.’ ”3 Ante, at 7 ). This rule, how ever, does not justify ignoring the plain terms of the statute. * * * The Court has effectively amended by adding an element that is nowhere to be found in the text of the statute. And the Court’s new element makes little sense and will create confusion for trial judges and juries. —————— element of a crime may provide a sufficient basis for inferring that another element may be satisfied. To take a common example, overt acts committed in furtherance of a conspiracy may be sufficient to permit a jury to infer that a conspiratorial agreement was reached. But that does not alter the need to prove beyond a reasonable doubt that such an agreement was reached. 3 The Court again makes a related argument. See ante, at 8–9. 8 FOWLER v. UNITED STATES ALITO, J., dissenting Following the language of I would hold that the evidence in this case was sufficient to establish all of the elements that Congress saw fit to include. I there fore respectfully dissent	1,872
Justice Alito	majority	false	Davis v. Ayala	2015-06-18	null	https://www.courtlistener.com/opinion/2809766/davis-v-ayala/	https://www.courtlistener.com/api/rest/v3/clusters/2809766/	2,015	null	null	null	null	A quarter-century after a California jury convicted Hector Ayala of triple murder and sentenced him to death, the Court of Appeals for the Ninth Circuit granted Ayala’s application for a writ of habeas corpus and ordered the State to retry or release him. The Ninth Circuit’s decision was based on the procedure used by the trial judge in ruling on Ayala’s objections under Batson v. Kentucky, 476 U.S. 79 (1986), to some of the prosecution’s peremptory challenges of prospective jurors. The trial judge allowed the prosecutor to explain the basis for those strikes out- side the presence of the defense so as not to disclose trial strategy. On direct appeal, the California Supreme Court found that if this procedure violated any federal constitu- tional right, the error was harmless beyond a reasonable doubt. The Ninth Circuit, however, held that the error was harmful. The Ninth Circuit’s decision was based on the misappli- cation of basic rules regarding harmless error. Assuming without deciding that a federal constitutional error oc- curred, the error was harmless under Brecht v. Abraham- 2 DAVIS v. AYALA Opinion of the Court son, 507 U.S. 619 (1993), and the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S. C. §2254(d). I A Ayala’s conviction resulted from the attempted robbery of an automobile body shop in San Diego, California, in April 1985. The prosecution charged Ayala with three counts of murder, one count of attempted murder, one count of robbery, and three counts of attempted robbery. The prosecution also announced that it would seek the death penalty on the murder counts. Jury selection lasted more than three months, and during this time the court and the parties interviewed the prospective jurors and then called back a subset for gen- eral voir dire. As part of the jury selection process, more than 200 potential jurors completed a 77-question, 17-page questionnaire. Potential jurors were then questioned in court regarding their ability to follow the law. Jurors who were not dismissed for cause were called back in groups for voir dire, and the parties exercised their peremptory challenges. Each side was allowed 20 peremptories, and the prose- cution used 18 of its allotment. It used seven peremp- tories to strike all of the African-Americans and Hispanics who were available for service. Ayala, who is Hispanic, raised Batson objections to those challenges. Ayala first objected after the prosecution peremptorily challenged two African-Americans, Olanders D. and Gali- leo S. The trial judge stated that these two strikes failed to establish a prima facie case of racial discrimination, but he nevertheless required the prosecution to reveal the reasons for the strikes. The prosecutor asked to do this outside the presence of the defense so as not to disclose trial strategy, and over Ayala’s objection, the judge Cite as: 576 U. S. ____ (2015) 3 Opinion of the Court granted the request. The prosecution then offered several reasons for striking Olanders D., including uncertainty about his willingness to impose the death penalty. The prosecution stated that it dismissed Galileo S. primarily because he had been arrested numerous times and had not informed the court about all his prior arrests. After hear- ing and evaluating these explanations, the judge conclud- ed that the prosecution had valid, race-neutral reasons for these strikes. Ayala again raised Batson objections when the prosecu- tion used peremptory challenges to dismiss two Hispanics, Gerardo O. and Luis M. As before, the judge found that the defense had not made out a prima facie case, but ordered the prosecution to reveal the reasons for the strikes. This was again done ex parte, but this time the defense did not expressly object. The prosecution ex- plained that it had challenged Gerardo O. and Luis M. in part because it was unsure that they could impose the death penalty. The prosecution also emphasized that Gerardo O.’s English proficiency was limited and that Luis M. had independently investigated the case. The trial court concluded a second time that the prosecution had legitimate race-neutral reasons for the strikes. Ayala raised Batson objections for a third and final time when the prosecution challenged Robert M., who was Hispanic; George S., whose ethnicity was disputed; and Barbara S., who was African-American. At this point, the trial court agreed that Ayala had made a prima facie Batson showing. Ayala’s counsel argued that the strikes were in fact based on race. Ayala’s counsel contended that the challenged jurors were “not significantly different from the white jurors that the prosecution ha[d] chosen to leave on the jury both in terms of their attitudes on the death penalty, their attitudes on the criminal justice system, and their attitudes on the presumption of innocence.” App. 306. Ayala’s counsel then reviewed the questionnaire 4 DAVIS v. AYALA Opinion of the Court answers and voir dire testimony of Barbara S. and Robert M., as well as the statements made by three of the pro- spective jurors who had been the subject of the prior Bat- son objections, Galileo S., Gerardo O., and Luis M. Coun- sel argued that their answers showed that they could impose the death penalty. The trial court stated that it would hear the prosecution’s response outside the pres- ence of the jury, and Ayala once more did not object to that ruling. The prosecution then explained that it had dis- missed the prospective jurors in question for several race- neutral reasons, including uncertainty that Robert M., George S., or Barbara S. would be open to imposing the death penalty. The prosecution also emphasized (among other points) that Robert M. had followed a controversial trial, that George S. had been a holdout on a prior jury, and that Barbara S. had given the impression during voir dire that she was under the influence of drugs. The trial court concluded, for a third time, that the prosecu- tion’s peremptory challenges were based on race-neutral criteria. In August 1989, the jury convicted Ayala of all the charges except one of the three attempted robberies. With respect to the three murder convictions, the jury found two special circumstances: Ayala committed multiple murders, and he killed during the course of an attempted robbery. The jury returned a verdict of death on all three murder counts, and the trial court entered judgment consistent with that verdict. B Ayala appealed his conviction and sentence, and counsel was appointed to represent him in January 1993. Be- tween 1993 and 1999, Ayala filed 20 applications for an extension of time, 11 of which requested additional time to file his opening brief. After the California Supreme Court eventually ruled that no further extensions would be Cite as: 576 U. S. ____ (2015) 5 Opinion of the Court granted, Ayala filed his opening brief in April 1998, nine years after he was convicted. The State filed its brief in September 1998, and Ayala then asked for four extensions of time to file his reply brief. After the court declared that it would grant him no further extensions, he filed his reply brief in May 1999. In August 2000, the California Supreme Court affirmed Ayala’s conviction and death sentence. People v. Ayala, 24 Cal. 4th 243, 6 P.3d 193. In an opinion joined by five justices, the State Supreme Court rejected Ayala’s conten- tion that the trial court committed reversible error by excluding the defense from part of the Batson hearing. The court understood Ayala to challenge the peremptory strikes under both Batson and its state-law analogue, People v. Wheeler, 22 Cal. 3d 258, 583 P.2d 748 (1978). The court first concluded that the prosecution had not offered matters of trial strategy at the ex parte hearing and that, “as a matter of state law, it was [error]” to bar Ayala’s attorney from the hearing. 24 Cal. 4th, at 262, 6 P. 3d, at 203. Turning to the question of prejudice, the court stated: “We have concluded that error occurred under state law, and we have noted [the suggestion in United States v. Thompson, 827 F.2d 1254 (CA9 1987),] that excluding the defense from a Wheeler-type hearing may amount to a denial of due process. We nonethe- less conclude that the error was harmless under state law (People v. Watson (1956) 46 Cal. 2d 818, 836), and that, if federal error occurred, it, too, was harmless beyond a reasonable doubt (Chapman v. California (1967) 386 U.S. 18, 24) as a matter of federal law. On the record before us, we are confident that the chal- lenged jurors were excluded for proper, race-neutral reasons.” Id., at 264, 6 P. 3d, at 204. The court then reviewed the prosecution’s reasons for 6 DAVIS v. AYALA Opinion of the Court striking the seven prospective jurors and found that “[o]n this well-developed record, . . . we are confident that de- fense counsel could not have argued anything substantial that would have changed the court’s rulings. Accordingly, the error was harmless.” Id., at 268, 6 P. 3d, at 207. The court concluded that the record supported the trial judge’s implicit determination that the prosecution’s justifications were not fabricated and were instead “grounded in fact.” Id., at 267, 6 P. 3d, at 206. And the court emphasized that the “trial court’s rulings in the ex parte hearing indisputa- bly reflect both its familiarity with the record of voir dire of the challenged prospective jurors and its critical as- sessment of the prosecutor’s proffered justifications.” Id., at 266–267, 6 P.3d, at 206. The California Supreme Court also rejected Ayala’s argument that his conviction should be vacated because most of the questionnaires filled out by prospective jurors who did not serve had been lost at some point during the decade that had passed since the end of the trial. The court wrote that “the record is sufficiently complete for us to be able to conclude that [the prospective jurors who were the subject of the contested peremptories] were not challenged and excused on the basis of forbidden group bias.” Id., at 270, 6 P. 3d, at 208. And even if the loss of the questionnaires was error under federal or state law, the court held, the error was harmless under Chapman and its state-law analogue. Two justices of the State Supreme Court dissented. We then denied certiorari. 532 U.S. 1029 (2001). C After the California Supreme Court summarily denied a habeas petition, Ayala turned to federal court. He filed his initial federal habeas petition in 2002, but then went back to state court to exhaust several claims. In Decem- ber 2004, he filed the operative federal petition and ar- Cite as: 576 U. S. ____ (2015) 7 Opinion of the Court gued, among other things, that the ex parte hearings and loss of the questionnaires violated his rights under the Sixth, Eighth, and Fourteenth Amendments. In 2006, the District Court denied Ayala relief on those claims. The District Court read the decision of the Cali- fornia Supreme Court to mean that the state court had not decided whether the ex parte proceedings violated federal law, and the District Court expressed doubt “whether the trial court’s procedure was constitutionally defective as a matter of clearly established Federal law.” App. to Pet. for Cert. 145a. But even if such a violation occurred, the District Court held, the state court’s finding of harmless- ness was not contrary to or an unreasonable application of clearly established law and thus could not be overturned under AEDPA. The District Court also rejected Ayala’s argument about the lost questionnaires, concluding that, even without them, the record was sufficient to resolve Ayala’s other claims. In 2013, a divided panel of the Ninth Circuit granted Ayala federal habeas corpus relief and required California either to release or retry him. Ayala v. Wong, 756 F.3d 656 (2014). Because Ayala’s federal petition is subject to the requirements of AEDPA, the panel majority began its analysis by inquiring whether the state court had adjudi- cated Ayala’s claims on the merits. Applying de novo review,1 the panel held that the ex parte proceedings violated the Federal Constitution, and that the loss of the questionnaires violated Ayala’s federal due process rights if that loss deprived him of “the ability to meaningfully appeal the denial of his Batson claim.” Id., at 671. The —————— 1 The panel decided this question de novo because it concluded that the California Supreme Court either did not decide whether the ex parte proceedings violated the Federal Constitution or silently decided that question in Ayala’s favor. 756 F.3d, at 666–670. 8 DAVIS v. AYALA Opinion of the Court panel folded this inquiry into its analysis of the question whether the error regarding the ex parte proceedings was harmless. Turning to the question of harmlessness, the panel identified the applicable standard of review as that set out in Brecht and added: “We apply the Brecht test without regard for the state court’s harmlessness determination.” 756 F.3d, at 674 (internal quotation marks omitted).2 The panel used the following complicated formulation to ex- press its understanding of Brecht’s application to Ayala’s claims: “If we cannot say that the exclusion of defense counsel with or without the loss of the questionnaires likely did not prevent Ayala from prevailing on his Batson claim, then we must grant the writ.” 756 F.3d, at 676. Applying this test, the panel majority found that the error was not harmless, at least with respect to three of the seven prospective jurors. The panel asserted that the absence of Ayala and his counsel had interfered with the trial court’s ability to evaluate the prosecution’s proffered justifications for those strikes and had impeded appellate review, and that the loss of the questionnaires had com- pounded this impairment. Judge Callahan dissented. She explained that the California Supreme Court’s decision that any federal error was harmless constituted a merits adjudication of Ayala’s federal claims. She then reviewed the prosecution’s ex- planations for its contested peremptory challenges and concluded that federal habeas relief was barred because “fairminded jurists can concur in the California Supreme Court’s determination of harmless error.” Id., at 706. —————— 2 In a footnote, however, the panel stated: “In holding that Ayala has demonstrated his entitlement to relief under Brecht, we therefore also hold to be an unreasonable application of Chapman the California Supreme Court’s conclusion that Ayala was not prejudiced by the exclusion of the defense.” Id., at 674, n. 13. Cite as: 576 U. S. ____ (2015) 9 Opinion of the Court The Ninth Circuit denied rehearing en banc, but Judge Ikuta wrote a dissent from denial that was joined by seven other judges. Like Judge Callahan, Judge Ikuta concluded that the California Supreme Court adjudicated the merits of Ayala’s federal claims. Instead of the panel’s “de novo review of the record that piles speculation upon specula- tion,” she would have found that the state court’s harm- lessness determination was not an unreasonable applica- tion of Chapman. 756 F.3d, at 723. We granted certiorari. 574 U. S. ___ (2014). II Ayala contends that his federal constitutional rights were violated when the trial court heard the prosecution’s justifications for its strikes outside the presence of the defense, but we find it unnecessary to decide that ques- tion. We assume for the sake of argument that Ayala’s federal rights were violated, but that does not necessarily mean that he is entitled to habeas relief. In the absence of “the rare type of error” that requires automatic reversal, relief is appropriate only if the prosecution cannot demon- strate harmlessness. Glebe v. Frost, 574 U. S. ___, ___ (2014) (per curiam) (slip op., at 3). The Ninth Circuit did not hold—and Ayala does not now contend—that the error here falls into that narrow category, and therefore Ayala is entitled to relief only if the error was not harmless. The test for whether a federal constitutional error was harmless depends on the procedural posture of the case. On direct appeal, the harmlessness standard is the one prescribed in Chapman, 386 U.S. 18: “[B]efore a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.” Id., at 24. In a collateral proceeding, the test is different. For reasons of finality, comity, and federalism, habeas peti- tioners “are not entitled to habeas relief based on trial 10 DAVIS v. AYALA Opinion of the Court error unless they can establish that it resulted in ‘actual prejudice.’ ” Brecht, 507 U.S., at 637 (quoting United States v. Lane, 474 U.S. 438, 449 (1986)). Under this test, relief is proper only if the federal court has “grave doubt about whether a trial error of federal law had ‘substantial and injurious effect or influence in determining the jury’s verdict.’ ” O’Neal v. McAninch, 513 U.S. 432, 436 (1995). There must be more than a “reasonable possibility” that the error was harmful. Brecht, supra, at 637 (internal quotation marks omitted). The Brecht standard reflects the view that a “State is not to be put to th[e] arduous task [of retrying a defendant] based on mere speculation that the defendant was prejudiced by trial error; the court must find that the defendant was actually prejudiced by the error.” Calderon v. Coleman, 525 U.S. 141, 146 (1998) (per curiam). Because Ayala seeks federal habeas corpus relief, he must meet the Brecht standard, but that does not mean, as the Ninth Circuit thought, that a state court’s harm- lessness determination has no significance under Brecht. In Fry v. Pliler, 551 U.S. 112, 120 (2007), we held that the Brecht standard “subsumes” the requirements that §2254(d) imposes when a federal habeas petitioner con- tests a state court’s determination that a constitutional error was harmless under Chapman. The Fry Court did not hold—and would have had no possible basis for hold- ing—that Brecht somehow abrogates the limitation on federal habeas relief that §2254(d) plainly sets out. While a federal habeas court need not “formal[ly]” apply both Brecht and “AEDPA/Chapman,” AEDPA nevertheless “sets forth a precondition to the grant of habeas relief.” Fry, supra, at 119–120. Under AEDPA, 28 U.S. C. §2254(d): “An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a Cite as: 576 U. S. ____ (2015) 11 Opinion of the Court 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 in- volved an unreasonable application of, clearly estab- lished Federal law, as determined by the Supreme Court of the United States; or “(2) resulted in a decision that was based on an un- reasonable determination of the facts in light of the evidence presented in the State court proceeding.” Section 2254(d) thus demands an inquiry into whether a prisoner’s “claim” has been “adjudicated on the merits” in state court; if it has, AEDPA’s highly deferential stand- ards kick in. Harrington v. Richter, 562 U.S. 86, 103 (2011). At issue here is Ayala’s claim that the ex parte portion of the Batson hearings violated the Federal Constitution. There is no dispute that the California Supreme Court held that any federal error was harmless beyond a reason- able doubt under Chapman, and this decision undoubtedly constitutes an adjudication of Ayala’s constitutional claim “on the merits.” See, e.g., Mitchell v. Esparza, 540 U.S. 12, 17–18 (2003) (per curiam). Accordingly, a federal habeas court cannot grant Ayala relief unless the state court’s rejection of his claim (1) was contrary to or in- volved an unreasonable application of clearly established federal law, or (2) was based on an unreasonable determi- nation of the facts. Because the highly deferential AEDPA standard applies, we may not overturn the California Supreme Court’s decision unless that court applied Chap- man “in an ‘objectively unreasonable’ manner.” Id., at 18 (quoting Lockyer v. Andrade, 538 U.S. 63, 75 (2003)). When a Chapman decision is reviewed under AEDPA, “a 12 DAVIS v. AYALA Opinion of the Court federal court may not award habeas relief under §2254 unless the harmlessness determination itself was unrea- sonable.” Fry, supra, at 119 (emphasis in original). And a state-court decision is not unreasonable if “ ‘fairminded jurists could disagree’ on [its] correctness.” Richter, supra, at 101 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Ayala therefore must show that the state court’s decision to reject his claim “was so lacking in justi- fication that there was an error well understood and com- prehended in existing law beyond any possibility for fair- minded disagreement.” 562 U.S., at 103. In sum, a prisoner who seeks federal habeas corpus relief must satisfy Brecht, and if the state court adjudi- cated his claim on the merits, the Brecht test subsumes the limitations imposed by AEDPA. Fry, supra, at 119–120. III With this background in mind, we turn to the question whether Ayala was harmed by the trial court’s decision to receive the prosecution’s explanation for its challenged strikes without the defense present. In order for this argument to succeed, Ayala must show that he was actually prejudiced by this procedure, a standard that he neces- sarily cannot satisfy if a fairminded jurist could agree with the California Supreme Court’s decision that this proce- dure met the Chapman standard of harmlessness. Evalu- ation of these questions requires consideration of the trial court’s grounds for rejecting Ayala’s Batson challenges. A Batson held that the Equal Protection Clause of the Fourteenth Amendment prohibits prosecutors from exer- cising peremptory challenges on the basis of race. 476 U.S., at 89. When adjudicating a Batson claim, trial courts follow a three-step process: “First, a defendant must make a prima facie showing Cite as: 576 U. S. ____ (2015) 13 Opinion of the Court that a peremptory challenge has been exercised on the basis of race; second, if that showing has been made, the prosecution must offer a race-neutral basis for striking the juror in question; and third, in light of the parties’ submissions, the trial court must determine whether the defendant has shown purposeful discrim- ination.” Snyder v. Louisiana, 552 U.S. 472, 476–477 (2008) (internal quotation marks and alterations omitted). The opponent of the strike bears the burden of persuasion regarding racial motivation, Purkett v. Elem, 514 U.S. 765, 768 (1995) (per curiam), and a trial court finding regarding the credibility of an attorney’s explanation of the ground for a peremptory challenge is “entitled to ‘great deference,’ ” Felkner v. Jackson, 562 U.S. 594, 598 (2011) (per curiam) (quoting Batson, 476 U.S., at 98, n. 21). On direct appeal, those findings may be reversed only if the trial judge is shown to have committed clear error. Rice v. Collins, 546 U.S. 333, 338 (2006). Under AEDPA, even more must be shown. A federal habeas court must accept a state-court finding unless it was based on “an unreason- able determination of the facts in light of the evidence presented in the State court proceeding.” §2254(d)(2). “State-court factual findings, moreover, are presumed correct; the petitioner has the burden of rebutting the presumption by ‘clear and convincing evidence.’ ” Collins, supra, at 338–339 (quoting §2254(e)(1)). In this case, Ayala challenged seven of the prosecution’s peremptory challenges. As explained above, the Ninth Circuit granted relief based on the dismissal of three potential jurors. The dissent discusses only one, Olanders D. We will devote most of our analysis to the three indi- viduals discussed by the Ninth Circuit, but we hold that any error was harmless with respect to all seven strikes. 14 DAVIS v. AYALA Opinion of the Court B 1 Ayala first contests the prosecution’s decision to chal- lenge Olanders D., an African-American man. The prose- cution stated that its “primary” reason for striking Olanders D. was uncertainty about whether he could impose the death penalty, and the prosecutor noted that Olanders D. had written on his questionnaire that he did not “believe in the death penalty.” 50 Reporter’s Tr. on Appeal 6185 (hereinafter Tr.). Providing additional rea- sons for this strike, the prosecutor first stated that Olanders D.’s responses “did not make a lot of sense,” “were not thought out,” and “demonstrate[d] a lack of ability to express himself well.” App. 283. The prosecutor also voiced doubt that Olanders D. “could actively partici- pate in a meaningful way in deliberations with other jurors” and might have lacked the “ability to fit in with a cohesive group of 12 people.” Ibid. The trial court concluded that the strike was race- neutral. The judge stated: “Certainly with reference to whether or not he would get along with 12 people, it may well be that he would get along very well with 12 people. I think the other observations of counsel are accurate and borne out by the record.” 50 Tr. 6186. The California Supreme Court found that the evidence of Olanders D.’s views on the death penalty provided adequate support for the trial judge’s finding that the strike exercised against him was not based on race, and the court further found that defense counsel’s presence would not have affected the outcome of the Batson hearing. The Ninth Circuit reversed, but its decision rested on a misapplication of the applicable harmless-error standards. 2 As the trial court and the State Supreme Court found, Olanders D.’s voir dire responses amply support the prose- Cite as: 576 U. S. ____ (2015) 15 Opinion of the Court cution’s concern that he might not have been willing to impose the death penalty. During voir dire, Olanders D. acknowledged that he wrote on his questionnaire, “ ‘I don’t believe in the death penalty,’ ” App. 179, and he agreed that he had at one time “thought that [the death penalty] was completely wrong,” id., at 177. Although he stated during the voir dire that he had reconsidered his views, it was reasonable for the prosecution and the trial court to find that he did not clearly or adequately explain the reason or reasons for this change. When asked about this, Olanders D. gave a vague and rambling reply: “Well, I think it’s—one thing would be the—the—I mean, examin- ing it more closely, I think, and becoming more familiar with the laws and the—and the behavior, I mean, the change in the people, I think. All of those things contrib- uted to the changes.” Id., at 178. The Ninth Circuit reversed because it speculated that defense counsel, if present when the prosecution explained the basis for this strike, “could have pointed to seated white jurors who had expressed similar or greater hesi- tancy” in imposing the death penalty. 756 F.3d, at 678. The Ninth Circuit wrote that a seated white juror named Ana L. was “indistinguishable from Olanders D. in this regard” and that she had “made almost precisely the same statement in her questionnaire.” Ibid. The responses of Olanders D. and Ana L., however, were by no means “indistinguishable.” Olanders D. initially voiced unequivocal opposition to the death penalty, stating flatly: “I don’t believe in the death penalty.” He also re- vealed that he had once thought it was “completely wrong.” Ana L., by contrast, wrote on the questionnaire that she “probably would not be able to vote for the death penalty,” App. 109 (emphasis added), and she then later said at voir dire that she could vote for a verdict of death. In a capital case, it is not surprising for prospective jurors to express varying degrees of hesitancy about voting 16 DAVIS v. AYALA Opinion of the Court for a death verdict. Few are likely to have experienced a need to make a comparable decision at any prior time in their lives. As a result, both the prosecution and the defense may be required to make fine judgment calls about which jurors are more or less willing to vote for the ultimate punishment. These judgment calls may involve a comparison of responses that differ in only nuanced re- spects, as well as a sensitive assessment of jurors’ de- meanor. We have previously recognized that peremptory challenges “are often the subjects of instinct,” Miller-El v. Dretke, 545 U.S. 231, 252 (2005) (citing Batson, 476 U.S., at 106 (Marshall, J., concurring)), and that “race-neutral reasons for peremptory challenges often invoke a juror’s demeanor,” Snyder, 552 U.S., at 477. A trial court is best situated to evaluate both the words and the demeanor of jurors who are peremptorily challenged, as well as the credibility of the prosecutor who exercised those strikes. As we have said, “these determinations of credibility and demeanor lie peculiarly within a trial judge’s province,” and “in the absence of exceptional circumstances, we [will] defer to the trial court.” Ibid. (alterations and internal quotation marks omitted). “Appellate judges cannot on the basis of a cold record easily second-guess a trial judge’s decision about likely motivation.” Collins, 546 U.S., at 343 (BREYER, J., concurring). The upshot is that even if “[r]easonable minds reviewing the record might disagree about the prosecutor’s credibil- ity, . . . on habeas review that does not suffice to supersede the trial court’s credibility determination.” Id., at 341–342 (majority opinion). Here, any similarity between the responses of Olanders D. and Ana L. is insufficient to compel an inference of racial discrimination under Brecht or AEDPA. Ayala contends that the presence of defense counsel might have made a difference because defense counsel might have been able to identify white jurors who were Cite as: 576 U. S. ____ (2015) 17 Opinion of the Court not stricken by the prosecution even though they had “expressed similar or greater hesitancy” about the death penalty. We see no basis for this argument. The ques- tionnaires of all the jurors who sat and all the alternates are in the record, and Ana L., whom we just discussed, is apparently the white juror whose answers come the clos- est to those of Olanders D. Since neither Ayala nor the Ninth Circuit identified a white juror whose statements better support their argument, there is no reason to think that defense counsel could have pointed to a superior comparator at the ex parte proceeding. 3 In rejecting the argument that the prosecutor perempto- rily challenged Olanders D. because of his race, the Cali- fornia Supreme Court appears to have interpreted the prosecutor’s explanation of this strike to mean that Olanders D.’s views on the death penalty were alone suffi- cient to convince him to exercise a strike, see 24 Cal. 4th, at 266, 6 P. 3d, at 206, and this was certainly an interpre- tation of the record that must be sustained under 28 U.S. C. §2254(d)(2). As a result, it is not necessary for us to consider the prosecutor’s supplementary reason for this strike—the poor quality of Olanders D.’s responses—but in any event, the Ninth Circuit’s evaluation of this reason is also flawed. The Ninth Circuit wrote that its independent “review of the voir dire transcript reveal[ed] nothing that supports the prosecution’s claim: Olanders D.’s answers were re- sponsive and complete.” 756 F.3d, at 679. The record, however, provides sufficient support for the trial court’s determination. Olanders D.’s incoherent explanation during voir dire of the reasons for his change of opinion about the death penalty was quoted above. He also pro- vided a chronology of the evolution of his views on the subject that did not hold together. He stated that he had 18 DAVIS v. AYALA Opinion of the Court been “completely against the death sentence” 10 years earlier but seemed to suggest that his views had changed over the course of the intervening decade. See App. 176– 177. However, on the questionnaire, which he had com- pleted just a month before the voir dire, he wrote unequiv- ocally: “I don’t believe in the death penalty.” Id., at 179. And then, at the time of the voir dire, he said that he would be willing to impose the death penalty in some cases. Id., at 180. He explained his answer on the ques- tionnaire as follows: “I answered that kind of fast[.] [N]ormally, I wouldn’t answer that question that way, but I mean, I really went through that kind of fast. I should have done better than that.” Id., at 179–180. These an- swers during voir dire provide more than sufficient sup- port for the prosecutor’s observation, which the trial court implicitly credited, that Olanders D.’s statements “did not make a lot of sense,” “were not thought out,” and “demon- strate[d] a lack of ability to express himself well.” In ordering federal habeas relief based on their assess- ment of the responsiveness and completeness of Olanders D.’s answers, the members of the panel majority misun- derstood the role of a federal court in a habeas case. The role of a federal habeas court is to “ ‘guard against extreme malfunctions in the state criminal justice systems,’ ” Rich- ter, 562 U.S., at 102–103 (quoting Jackson v. Virginia, 443 U.S. 307, 332, n. 5 (1979) (Stevens, J., concurring in judgment)), not to apply de novo review of factual findings and to substitute its own opinions for the determination made on the scene by the trial judge. C Ayala next challenges the prosecution’s use of a peremp- tory challenge to strike Gerardo O., a Hispanic man. The prosecution offered three reasons for this strike: Gerardo O. had a poor grasp of English; his answers during voir dire and on his questionnaire suggested that he might Cite as: 576 U. S. ____ (2015) 19 Opinion of the Court not be willing to impose the death penalty; and he did not appear to get along with the other prospective jurors. The trial judge accepted this explanation, as did the State Supreme Court. The Ninth Circuit, however, rejected the state courts’ determinations based on speculation that defense counsel, if present at the in camera hearing, “likely could have called into question all of the prosecution’s stated reasons for striking Gerardo O.” 756 F.3d, at 680. The Ninth Circuit thought that it could grant Ayala relief simply because it “[could not] say that Ayala would not have shown that the trial court would or should have deter- mined that the prosecution’s strike of Gerardo O. violated Batson.” Id., at 682. But that is not the test. The inquiry under Brecht is not whether the federal habeas court could definitively say that there were no winning arguments that the defense could have made. Instead, the evidence in the record must raise “grave doubt[s]” about whether the trial judge would have ruled differently. O’Neal, 513 U.S., at 436. This requires much more than a “reasonable possibility” that the result of the hearing would have been different. Brecht, 507 U.S., at 637 (internal quotation marks omitted). And on the record in this case, Ayala cannot establish actual prejudice or that no fairminded jurist could agree with the state court’s application of Chapman. We begin with the prosecution’s explanation that it challenged Gerardo O. because of his limited English proficiency. During voir dire, Gerardo O. acknowledged that someone else had written the answers for him on his questionnaire “[b]ecause I couldn’t—I cannot read—I cannot spell that well.” App. 163. He added that he “didn’t get” some of the words on the questionnaire. Ibid. Gerardo O.’s testimony also revealed that he might well have been unable to follow what was said at trial. When asked whether he could understand spoken English, he 20 DAVIS v. AYALA Opinion of the Court responded: “It depends if you make long words. If you make—if you go—if you say it straight out, then I might understand. If you beat around the bush, I won’t.” Id., at 166. At that point, defense counsel and Gerardo O. en- gaged in a colloquy that suggests that defense counsel recognized that he lacked the ability to understand words not used in basic everyday speech, “legal words,” and rapid speech in English: “Q: I’ll try not to talk—use any legal words or law- yer talk— “A: Okay. “Q: —and talk regular with you. If you don’t under- stand anything I say, stop me and tell me, okay? “A: Okay. “Q: If you’re selected as a juror during the trial, and you know you’re serving as a juror and listening to witnesses, can we have your promise that if a witness uses a word you don’t understand, you’ll put your hand up and let us know? “A: Yeah. . . . . . “Q: There’s one more problem that you’re going to have with me, and that is that sometimes . . . I talk real fast . . . .” Id., at 166–167. It is understandable for a prosecutor to strike a poten- tial juror who might have difficulty understanding Eng- lish.3 The jurors who were ultimately selected heard —————— 3 The California Supreme Court has held that “[i]nsufficient com- mand of the English language to allow full understanding of the words employed in instructions and full participation in deliberations clearly . . . render[s] a juror ‘unable to perform his duty’ ” within the meaning of the California Penal Code. People v. Lomax, 49 Cal. 4th 530, 566, 234 P.3d 377, 407 (2010) (citation omitted). See also Cal. Code Ann. Cite as: 576 U. S. ____ (2015) 21 Opinion of the Court many days of testimony, and the instructions at both the guilt and the penalty phases included “legal words” and words not common in everyday speech. The prosecution had an obvious reason to worry that service on this jury would have strained Gerardo O.’s linguistic capability. The Ninth Circuit reached a contrary conclusion by distorting the record and the applicable law. The Ninth Circuit first suggested that Gerardo O.’s English-language deficiencies were limited to reading and writing, 756 F.3d, at 680, but as the portions of the voir dire quoted above make clear, that was not true; the record shows that his ability to understand spoken English was also limited. The Ninth Circuit then suggested that “[t]he prosecution’s purported reason for striking Gerardo O. . . . was directly related to his status as someone who spoke Spanish as his first language,” ibid., but the prosecutor voiced no concern about Gerardo O.’s ability to speak Spanish or about the fact that Spanish was his first language. The prosecu- tion’s objection concerned Gerardo O.’s limited proficiency in English. The Ninth Circuit quoted the following state- ment from Hernandez v. New York, 500 U.S. 352, 363 (1991) (plurality opinion): “ ‘[T]he prosecutor’s frank ad- mission that his ground for excusing th[is] juror[ ] related to [his] ability to speak and understand Spanish raised a plausible, though not a necessary, inference that language might be a pretext for what in fact [was a] race-based peremptory challenge[ ].’ ” 756 F.3d, at 680 (alterations in original). This statement, however, did not concern a peremptory exercised due to a prospective juror’s lack of English proficiency. Instead, it concerned the dismissal of —————— Civ. Proc. §203(a)(6) (West 2006). The seating of jurors whose lack of English proficiency was only somewhat more pronounced than Gerardo O.’s has been held to be error. See People v. Szymanski, 109 Cal. App. 4th 1126, 135 Cal. Rptr. 2d 691 (2003). 22 DAVIS v. AYALA Opinion of the Court Spanish-speaking members of the venire for fear that, if seated, they might not follow the English translation of testimony given in Spanish. See 500 U.S., at 360. The Ninth Circuit’s decision regarding Gerardo O. was thus based on a misreading of the record and a distortion of our case law. And neither Ayala nor the Ninth Circuit has identified anything that defense counsel might have done at the ex parte hearing to show that the prosecutor’s con- cern about Gerardo O.’s limited English proficiency was pretextual. The prosecution’s second proffered reason for striking Gerardo O. was concern about his willingness to impose the death penalty, and as the trial court found, this obser- vation was also supported by the record. Indeed, when asked in voir dire how he felt about imposing the death penalty, Gerardo O. responded that he was “[k]ind of shaky about it. . . . I’m not too sure if I can take someone else’s life in my hands and say that; say, you know, ‘death,’ or something.” App. 168. In response to another question about his thoughts on the death penalty, he replied: “I don’t know yet. It’s kind of hard, you know, to pick it up like that and say how I feel about the death penalty.” 15 Tr. 1052. Answering a question about whether his thoughts on the death penalty would affect how he viewed the evidence presented at trial, he responded, “I don’t know, sir, to tell you the truth.” App. 165. And when asked if he had “any feeling that [he] would be unable to vote for the death penalty if [he] thought it was a case that called for it,” Gerardo O. responded once again, “I don’t know.” 15 Tr. 1043. While Gerardo O. did say at one point that he might be willing to impose the death pen- alty, he qualified that statement by adding that he would be comforted by the fact that “there’s eleven more other persons on the jury.” App. 170. What we said above regarding jurors who express doubts about their openness to a death verdict applies as Cite as: 576 U. S. ____ (2015) 23 Opinion of the Court well here. The prosecution’s reluctance to take a chance that Gerardo O. would ultimately be willing to consider the death penalty in accordance with state law did not compel the trial judge to find that the strike of Gerardo O. was based on race. Nor is there a basis for finding that the absence of de- fense counsel affected the trial judge’s evaluation of the sincerity of this proffered ground for the strike. Defense counsel had a full opportunity during voir dire to create a record regarding Gerardo O.’s openness to the death pen- alty. And defense counsel had the opportunity prior to the ex parte proceeding on the Gerardo O. strike to compare the minority jurors dismissed by the prosecution with white jurors who were seated. Counsel argued that the answers on the death penalty given by the minority jurors were “not significantly different from [those of] the white jurors that the prosecution ha[d] chosen to leave on the jury.” Id., at 306. The trial judge asked counsel for “par- ticulars,” and counsel discussed Gerardo O., albeit briefly. Id., at 307–308. Thus, there is no reason to believe that counsel could have made a more persuasive argument at the ex parte proceeding than he made during this exchange. The prosecution’s final reason for striking Gerardo O. was that he appeared to be “a standoffish type of individ- ual” whose “dress and . . . mannerisms . . . were not in keeping with the other jurors” and who “did not appear to be socializing or mixing with any of the other jurors.” Id., at 298. The trial judge did not dispute that the prosecu- tion’s reflections were borne out by the record. The Cali- fornia Supreme Court affirmed and also emphasized that “the trial court’s rulings in the ex parte hearing indisput- ably reflect both its familiarity with the record of voir dire of the challenged prospective jurors and its critical as- sessment of the prosecutor’s proffered justifications.” 24 Cal. 4th, at 266–267, 6 P.3d, at 206. 24 DAVIS v. AYALA Opinion of the Court In light of the strength of the prosecution’s first two reasons for striking Gerardo O., it is not at all clear that the prosecution proffered this final reason as an essential factor in its decision to strike, but in any event, there is no support for the suggestion that Ayala’s attorney, if allowed to attend the ex parte hearing, would have been able to convince the judge that this reason was pretextual. The Ninth Circuit, however, was content to speculate about what might have been. Mixing guesswork with armchair sociology, the Ninth Circuit mused that “[i]t is likely that Gerardo O.’s dress and mannerisms were distinctly His- panic. Perhaps in the late 1980’s Hispanic males in San Diego County were more likely than members of other racial or ethnic groups in the area to wear a particular style or color of shirt, and Gerardo O. was wearing such a shirt.” 756 F.3d, at 680–681. As for the prosecution’s observation that Gerardo O. did not socialize with other jurors, the Ninth Circuit posited that, “perhaps, unbe- knownst to the trial judge, Gerardo O. did ‘socializ[e] or mix[ ]’ with a number of other jurors, and had even orga- nized a dinner for some of them at his favorite Mexican restaurant.” Id., at 681. This is not how habeas review is supposed to work. The record provides no basis for the Ninth Circuit’s flight of fancy. Brecht requires more than speculation about what extrarecord information defense counsel might have men- tioned. And speculation of that type is not enough to show that a State Supreme Court’s rejection of the argument regarding Gerardo O. was unreasonable. D The final prospective juror specifically discussed in the Ninth Circuit’s decision was Robert M., who is Hispanic. The prosecution’s primary proffered reason for striking Robert M. was concern that he would not impose the death penalty, though the prosecution added that it was troubled Cite as: 576 U. S. ____ (2015) 25 Opinion of the Court that he had followed the Sagon Penn case, a high-profile prosecution in San Diego in which an alleged murderer was acquitted amid allegations of misconduct by police and prosecutors. In addition, the prosecution also ex- plained to the trial court that Robert M. scored poorly on its 10-point scale for evaluating prospective jurors. The trial court accepted the prosecutor’s explanation of the strike. With respect to the prosecution’s concern that Robert M. might not be willing to impose the death penalty, the Ninth Circuit found that defense counsel, if permitted to attend the in camera proceeding, could have compared Robert M.’s statements about the death penalty to those of other jurors and could have reminded the judge that Rob- ert M. had “repeatedly stated during voir dire that he believed in the death penalty and could personally vote to impose it.” 756 F.3d, at 682. But as with Olanders D. and Gerardo O., we cannot say that the prosecution had no basis for doubting Robert M.’s willingness to impose the death penalty. For example, when asked at one point whether he could vote for death, Robert M. responded: “Well, I’ve though[t] about that, but it’s a difficult ques- tion, and yeah, it is difficult for me to say, you know, one way or the other. I believe in it, but for me to be involved in it is—is hard. It’s hard to accept that aspect of it, do you know what I mean?” App. 149–150. In response to another question, he said: “It would be hard, but I think I could, yes. It’s—it’s hard to say, you know—and I don’t care who the person is—to say that they have to put somebody away, you know. It’s very hard.” Id., at 154. These are hardly answers that would inspire confidence in the minds of prosecutors in a capital case. While the Ninth Circuit argued that defense counsel’s absence at the in camera hearing prejudiced the trial judge’s ability to assess this reason for the strike of Robert M., the Ninth Circuit failed to mention that defense coun- 26 DAVIS v. AYALA Opinion of the Court sel specifically addressed this issue during voir dire. At that time, he pointedly reminded the judge that Robert M. had made several statements during voir dire that were favorable to the death penalty. Id., at 307. The trial judge thus heard defense counsel’s arguments but nevertheless concluded that the record supplied a basis for a legitimate concern about whether Robert M. could impose the death penalty. That Ayala’s attorney did not have the oppor- tunity to repeat this same argument once more at the in camera proceeding does not create grave doubt about whether the trial court would have decided the issue differently. As for the prosecution’s second proffered reason for striking Robert M.—that he had followed the Sagon Penn case4—the Ninth Circuit placed great emphasis on the fact that a seated white juror had followed a different murder trial, that of Robert Alton Harris.5 But the Penn and Harris cases were quite different. Harris was convicted while Penn was acquitted; and since the Harris case was much older, the experience of following it was less likely to have an effect at the time of the trial in this case. E Ayala raised a Batson objection about the prosecution’s use of peremptory challenges on four additional jurors, George S., Barbara S., Galileo S., and Luis M. The Ninth Circuit did not address these prospective jurors at length, and we need not dwell long on them. With respect to all four of these prospective jurors, we conclude that any constitutional error was harmless. Of these four additional jurors, Ayala’s brief in this Court develops an argument with respect to only two, —————— 4 See Man Acquitted of Killing Officer, N. Y. Times, July 17, 1987, p. B8. 5 See People v. Harris, 28 Cal. 3d 935, 623 P.2d 240 (1981). Cite as: 576 U. S. ____ (2015) 27 Opinion of the Court George S. and Barbara S. And while Ayala’s attorney claimed that George S. was Hispanic, the prosecutor said that he thought that George S. was Greek. In any event, the prosecution offered several reasons for striking George S. The prosecutor noted that one of his responses “was essentially, ‘you probably don’t want me to be a juror on this case.’ ” Id., at 312. The prosecutor was also concerned about whether he would vote for death or even a life sen- tence and whether he would follow the law as opposed to his personal religious beliefs. In addition, the prosecutor noted that George S. had previously been the sole holdout on a jury and that his prior application to be a police officer had been rejected, for reasons that were not clear. The trial court accepted these explanations. Ayala contests only two of these justifications. He quib- bles that George S. had not been a “ ‘holdout,’ ” but instead had been the dissenting juror in a civil case on which unanimity was not required. This observation does not render the prosecution’s proffered justification “false or pretextual.” Brief for Respondent 46. The fact that George S. had been willing to dissent from a jury verdict could reasonably give a prosecutor pause in a capital case since a single holdout juror could prevent a guilty verdict or death sentence. The most that Ayala can establish is that reasonable minds can disagree about whether the prosecution’s fears were well founded, but this does not come close to establishing “actual prejudice” under Brecht. Nor does it meet the AEDPA standard. Ayala also points out that a seated white juror, Charles C., had been re- jected by a police force, but George S. admitted that he had applied to law enforcement because he was “trying to get out of the Army,” App. 222, and the reasons for his rejection were not clear. Charles C., by contrast, had received a qualifying score on a law enforcement exam but was not hired because a position was not available. As for Barbara S., the prosecution struck her because, 28 DAVIS v. AYALA Opinion of the Court during voir dire, she appeared to be “under the influence of drugs” and disconnected from the proceedings. Id., at 314. The prosecution emphasized that she had “an empty look in her eyes, slow responses, a lack of really being totally in tune with what was going on.” Ibid. It added that she appeared “somewhat angry,” “manifest[ed] a great deal of nervousness,” and seemed like someone who would be unlikely to closely follow the trial. Ibid. The trial judge thought that Barbara S. appeared nervous rather than hostile, but he agreed that she gave incom- plete answers that were sometimes “non sequiturs.” Id., at 315. He concluded, “I certainly cannot quarrel . . . with your subjective impression, and the use of your peremp- tory challenge based upon her individual manifestation, as opposed to her ethnicity.” Ibid. Ayala points to the trial court’s disagreement with the prosecutor’s impression that Barbara S. was hostile, but this ruling illustrates the trial judge’s recollection of the demeanor of the prospective jurors and his careful evaluation of each of the prosecu- tor’s proffered reasons for strikes. And the fact that the trial judge’s impression of Barbara S.’s demeanor was somewhat different from the prosecutor’s hardly shows that the prosecutor’s reasons were pretextual. It is not at all unusual for individuals to come to different conclusions in attempting to read another person’s attitude or mood. IV The pattern of peremptory challenges in this case was sufficient to raise suspicions about the prosecution’s mo- tives and to call for the prosecution to explain its strikes. As we have held, the Fourteenth Amendment prohibits a prosecutor from striking potential jurors based on race. Discrimination in the jury selection process undermines our criminal justice system and poisons public confidence in the evenhanded administration of justice. In Batson, this Court adopted a procedure for ferreting Cite as: 576 U. S. ____ (2015) 29 Opinion of the Court out discrimination in the exercise of peremptory challenges, and this procedure places great responsibility in the hands of the trial judge, who is in the best position to determine whether a peremptory challenge is based on an impermissible factor. This is a difficult determination because of the nature of peremptory challenges: They are often based on subtle impressions and intangible factors. In this case, the conscientious trial judge determined that the strikes at issue were not based on race, and his judg- ment was entitled to great weight. On appeal, five justices of the California Supreme Court carefully evaluated the record and found no basis to reverse. A Federal District Judge denied federal habeas relief, but a divided panel of the Ninth Circuit reversed the District Court and found that the California Supreme Court had rendered a deci- sion with which no fairminded jurist could agree. For the reasons explained above, it was the Ninth Cir- cuit that erred. The exclusion of Ayala’s attorney from part of the Batson hearing was harmless error. There is no basis for finding that Ayala suffered actual prejudice, and the decision of the California Supreme Court repre- sented an entirely reasonable application of controlling precedent. * * * 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. Cite as: 576 U. S. ____ (2015) 1 KENNEDY, J., concurring SUPREME COURT OF THE UNITED STATES _________________ No. 13–1428 _________________ RON DAVIS, ACTING WARDEN, PETITIONER v.	A quar-century af a California jury convicted Hector Ayala of triple murder and sentenced him to death, the Court of Appeals for the Ninth Circuit granted Ayala’s application for a writ of habeas corpus and ordered the State to retry or release him. The Ninth Circuit’s decision was based on the procedure used by the trial judge in ruling on Ayala’s objections under v. Kentucky, 476 U.S. 79 to some of the prosecution’s peremptory challenges of prospective jurors. The trial judge allowed the prosecutor to explain the basis for those strikes out- side the presence of the defense so as not to disclose trial strategy. On direct appeal, the California Supreme Court found that if this procedure violated any federal constitu- tional right, the error was harmless beyond a reasonable doubt. The Ninth Circuit, however, held that the error was harmful. The Ninth Circuit’s decision was based on the misappli- cation of basic rules regarding harmless error. Assuming without deciding that a federal constitutional error oc- curred, the error was harmless under v. Abraham- 2 and the Antirorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S. C. I A Ayala’s conviction resulted from the attempted robbery of an automobile body shop in San Diego, California, in April 1985. The prosecution charged Ayala with three counts of murder, one count of attempted murder, one count of robbery, and three counts of attempted robbery. The prosecution also announced that it would seek the death penalty on the murder counts. Jury selection lasted more than three months, and during this time the court and the parties inviewed the prospective jurors and then called back a subset for gen- eral voir dire. As part of the jury selection process, more than 200 potential jurors completed a 77-question, 17-page questionnaire. Potential jurors were then questioned in court regarding their ability to follow the law. Jurors who were not dismissed for cause were called back in groups for voir dire, and the parties exercised their peremptory challenges. Each side was allowed 20 peremptories, and the prose- cution used 18 of its allotment. It used seven peremp- tories to strike all of the African-Americans and Hispanics who were available for service. Ayala, who is Hispanic, raised objections to those challenges. Ayala first objected af the prosecution peremptorily challenged two African-Americans, Olanders D. and Gali- leo S. The trial judge stated that these two strikes failed to establish a prima facie case of racial discrimination, but he nevertheless required the prosecution to reveal the reasons for the strikes. The prosecutor asked to do this outside the presence of the defense so as not to disclose trial strategy, and over Ayala’s objection, the judge Cite as: 576 U. S. (2015) 3 Opinion of the Court granted the request. The prosecution then offered several reasons for striking Olanders D., including uncertainty about his willingness to impose the death The prosecution stated that it dismissed Galileo S. primarily because he had been arrested numerous times and had not informed the court about all his prior arrests. Af hear- ing and evaluating these explanations, the judge conclud- ed that the prosecution had valid, race-neutral reasons for these strikes. Ayala again raised objections when the prosecu- tion used peremptory challenges to dismiss two Hispanics, Gerardo O. and Luis M. As before, the judge found that the defense had not made out a prima facie case, but ordered the prosecution to reveal the reasons for the strikes. This was again done ex parte, but this time the defense did not expressly object. The prosecution ex- plained that it had challenged Gerardo O. and Luis M. in part because it was unsure that they could impose the death The prosecution also emphasized that Gerardo O.’s English proficiency was limited and that Luis M. had independently investigated the case. The trial court concluded a second time that the prosecution had legitimate race-neutral reasons for the strikes. Ayala raised objections for a third and final time when the prosecution challenged Robert M., who was Hispanic; George S., whose ethnicity was disputed; and Barbara S., who was African-American. At this point, the trial court agreed that Ayala had made a prima facie showing. Ayala’s counsel argued that the strikes were in fact based on race. Ayala’s counsel contended that the challenged jurors were “not significantly different from the white jurors that the prosecution ha[d] chosen to leave on the jury both in ms of their attitudes on the death penalty, their attitudes on the criminal justice system, and their attitudes on the presumption of innocence.” App. 306. Ayala’s counsel then reviewed the questionnaire 4 DAVIS v. AYALA Opinion of the Court answers and voir dire testimony of Barbara S. and Robert M., as well as the statements made by three of the pro- spective jurors who had been the subject of the prior Bat- son objections, Galileo S., Gerardo O., and Luis M. Coun- sel argued that their answers showed that they could impose the death The trial court stated that it would hear the prosecution’s response outside the pres- ence of the jury, and Ayala once more did not object to that ruling. The prosecution then explained that it had dis- missed the prospective jurors in question for several race- neutral reasons, including uncertainty that Robert M., George S., or Barbara S. would be open to imposing the death The prosecution also emphasized (among other points) that Robert M. had followed a controversial trial, that George S. had been a holdout on a prior jury, and that Barbara S. had given the impression during voir dire that she was under the influence of drugs. The trial court concluded, for a third time, that the prosecu- tion’s peremptory challenges were based on race-neutral criia. In August 1989, the jury convicted Ayala of all the charges except one of the three attempted robberies. With respect to the three murder convictions, the jury found two special circumstances: Ayala committed multiple murders, and he killed during the course of an attempted robbery. The jury returned a verdict of death on all three murder counts, and the trial court ened judgment consistent with that verdict. B Ayala appealed his conviction and sentence, and counsel was appointed to represent him in January 1993. Be- tween 1993 and 1999, Ayala filed 20 applications for an extension of time, 11 of which requested additional time to file his opening brief. Af the California Supreme Court eventually ruled that no further extensions would be Cite as: 576 U. S. (2015) 5 Opinion of the Court granted, Ayala filed his opening brief in April 1998, nine years af he was convicted. The State filed its brief in September 1998, and Ayala then asked for four extensions of time to file his reply brief. Af the court declared that it would grant him no further extensions, he filed his reply brief in May 1999. In August 2000, the California Supreme Court affirmed Ayala’s conviction and death sentence. In an opinion joined by five justices, the State Supreme Court rejected Ayala’s conten- tion that the trial court committed reversible error by excluding the defense from part of the The court understood Ayala to challenge the peremptory strikes under both and its state-law analogue, The court first concluded that the prosecution had not offered mats of trial strategy at the ex parte hearing and that, “as a mat of state law, it was [error]” to bar Ayala’s attorney from the 6 P. 3d, at 203. Turning to the question of prejudice, the court stated: “We have concluded that error occurred under state law, and we have noted [the suggestion in United] that excluding the defense from a Wheeler-type hearing may amount to a denial of due process. We nonethe- less conclude that the error was harmless under state law ), and that, if federal error occurred, it, too, was harmless beyond a reasonable doubt ) as a mat of federal law. On the record before us, we are confident that the chal- lenged jurors were excluded for proper, race-neutral reasons.” The court then reviewed the prosecution’s reasons for 6 DAVIS v. AYALA Opinion of the Court striking the seven prospective jurors and found that “[o]n this well-developed record, we are confident that de- fense counsel could not have argued anything substantial that would have changed the court’s rulings. Accordingly, the error was harmless.” The court concluded that the record supported the trial judge’s implicit demination that the prosecution’s justifications were not fabricated and were instead “grounded in fact.” And the court emphasized that the “trial court’s rulings in the ex parte hearing indisputa- bly reflect both its familiarity with the record of voir dire of the challenged prospective jurors and its critical as- sessment of the prosecutor’s proffered justifications.” at –, The California Supreme Court also rejected Ayala’s argument that his conviction should be vacated because most of the questionnaires filled out by prospective jurors who did not serve had been lost at some point during the decade that had passed since the end of the trial. The court wrote that “the record is sufficiently complete for us to be able to conclude that [the prospective jurors who were the subject of the contested peremptories] were not challenged and excused on the basis of forbidden group bias.” And even if the loss of the questionnaires was error under federal or state law, the court held, the error was harmless under Chapman and its state-law analogue. Two justices of the State Supreme Court dissented. We then denied certiorari. 532 U.S. 1029 (2001). C Af the California Supreme Court summarily denied a habeas petition, Ayala turned to federal court. He filed his initial federal habeas petition in 2002, but then went back to state court to exhaust several claims. In Decem- ber 2004, he filed the operative federal petition and ar- Cite as: 576 U. S. (2015) 7 Opinion of the Court gued, among other things, that the ex parte hearings and loss of the questionnaires violated his rights under the Sixth, Eighth, and Fourteenth Amendments. In 2006, the District Court denied Ayala relief on those claims. The District Court read the decision of the Cali- fornia Supreme Court to mean that the state court had not decided whether the ex parte proceedings violated federal law, and the District Court expressed doubt “whether the trial court’s procedure was constitutionally defective as a mat of clearly established Federal law.” App. to Pet. for Cert. 145a. But even if such a violation occurred, the District Court held, the state court’s finding of harmless- ness was not contrary to or an unreasonable application of clearly established law and thus could not be overturned under AEDPA. The District Court also rejected Ayala’s argument about the lost questionnaires, concluding that, even without them, the record was sufficient to resolve Ayala’s other claims. In 2013, a divided panel of the Ninth Circuit granted Ayala federal habeas corpus relief and required California either to release or retry him. Ayala v. Wong, 6 F.3d 656 (2014). Because Ayala’s federal petition is subject to the requirements of AEDPA, the panel majority began its analysis by inquiring whether the state court had adjudi- cated Ayala’s claims on the merits. Applying de novo review,1 the panel held that the ex parte proceedings violated the Federal Constitution, and that the loss of the questionnaires violated Ayala’s federal due process rights if that loss deprived him of “the ability to meaningfully appeal the denial of his claim.” The —————— 1 The panel decided this question de novo because it concluded that the California Supreme Court either did not decide whether the ex parte proceedings violated the Federal Constitution or silently decided that question in Ayala’s –670. 8 DAVIS v. AYALA Opinion of the Court panel folded this inquiry into its analysis of the question whether the error regarding the ex parte proceedings was harmless. Turning to the question of harmlessness, the panel identified the applicable standard of review as that set out in and added: “We apply the test without regard for the state court’s harmlessness demination.”2 The panel used the following complicated formulation to ex- press its understanding of ’s application to Ayala’s claims: “If we cannot say that the exclusion of defense counsel with or without the loss of the questionnaires likely did not prevent Ayala from prevailing on his claim, then we must grant the writ.” Applying this test, the panel majority found that the error was not harmless, at least with respect to three of the seven prospective jurors. The panel asserted that the absence of Ayala and his counsel had infered with the trial court’s ability to evaluate the prosecution’s proffered justifications for those strikes and had impeded appellate review, and that the loss of the questionnaires had com- pounded this impairment. Judge Callahan dissented. She explained that the California Supreme Court’s decision that any federal error was harmless constituted a merits adjudication of Ayala’s federal claims. She then reviewed the prosecution’s ex- planations for its contested peremptory challenges and concluded that federal habeas relief was barred because “fairminded jurists can concur in the California Supreme Court’s demination of harmless error.” —————— 2 In a footnote, however, the panel stated: “In holding that Ayala has demonstrated his entitlement to relief under we therefore also hold to be an unreasonable application of Chapman the California Supreme Court’s conclusion that Ayala was not prejudiced by the exclusion of the defense.” Cite as: 576 U. S. (2015) 9 Opinion of the Court The Ninth Circuit denied rehearing en banc, but Judge Ikuta wrote a dissent from denial that was joined by seven other judges. Like Judge Callahan, Judge Ikuta concluded that the California Supreme Court adjudicated the merits of Ayala’s federal claims. Instead of the panel’s “de novo review of the record that piles speculation upon specula- tion,” she would have found that the state court’s harm- lessness demination was not an unreasonable applica- tion of We granted certiorari. 574 U. S. (2014). II Ayala contends that his federal constitutional rights were violated when the trial court heard the prosecution’s justifications for its strikes outside the presence of the defense, but we find it unnecessary to decide that ques- tion. We assume for the sake of argument that Ayala’s federal rights were violated, but that does not necessarily mean that he is entitled to habeas relief. In the absence of “the rare type of error” that requires automatic reversal, relief is appropriate only if the prosecution cannot demon- strate harmlessness. Glebe v. Frost, 574 U. S. (2014) (per curiam) (slip op., at 3). The Ninth Circuit did not hold—and Ayala does not now contend—that the error here falls into that narrow category, and therefore Ayala is entitled to relief only if the error was not harmless. The test for whether a federal constitutional error was harmless depends on the procedural posture of the case. On direct appeal, the harmlessness standard is the one prescribed in Chapman, : “[B]efore a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.” at In a collaal proceeding, the test is different. For reasons of finality, comity, and federalism, habeas peti- tioners “are not entitled to habeas relief based on trial 10 DAVIS v. AYALA Opinion of the Court error unless they can establish that it resulted in ‘actual prejudice.’ ” ). Under this test, relief is proper only if the federal court has “grave doubt about whether a trial error of federal law had ‘substantial and injurious effect or influence in demining the jury’s verdict.’ ” There must be more than a “reasonable possibility” that the error was harmful. (innal quotation marks omitted). The standard reflects the view that a “State is not to be put to th[e] arduous task [of retrying a defendant] based on mere speculation that the defendant was prejudiced by trial error; the court must find that the defendant was actually prejudiced by the error.” (per curiam). Because Ayala seeks federal habeas corpus relief, he must meet the standard, but that does not mean, as the Ninth Circuit thought, that a state court’s harm- lessness demination has no significance under In we held that the standard “subsumes” the requirements that imposes when a federal habeas petitioner con- tests a state court’s demination that a constitutional error was harmless under The Court did not hold—and would have had no possible basis for hold- ing—that somehow abrogates the limitation on federal habeas relief that plainly sets out. While a federal habeas court need not “formal[ly]” apply both and “AEDPA/Chapman,” AEDPA nevertheless “sets forth a precondition to the grant of habeas relief.” –. Under AEDPA, 28 U.S. C. : “An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a Cite as: 576 U. S. (2015) 11 Opinion of the Court 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 in- volved an unreasonable application of, clearly estab- lished Federal law, as demined by the Supreme Court of the United States; or “(2) resulted in a decision that was based on an un- reasonable demination of the facts in light of the evidence presented in the State court proceeding.” Section 2254(d) thus demands an inquiry into whether a prisoner’s “claim” has been “adjudicated on the merits” in state court; if it has, AEDPA’s highly deferential stand- ards kick in. At issue here is Ayala’s claim that the ex parte portion of the hearings violated the Federal Constitution. There is no dispute that the California Supreme Court held that any federal error was harmless beyond a reason- able doubt under Chapman, and this decision undoubtedly constitutes an adjudication of Ayala’s constitutional claim “on the merits.” See, e.g., Mitchell v. Esparza, 540 U.S. 12, 17–18 (per curiam). Accordingly, a federal habeas court cannot grant Ayala relief unless the state court’s rejection of his claim (1) was contrary to or in- volved an unreasonable application of clearly established federal law, or (2) was based on an unreasonable demi- nation of the facts. Because the highly deferential AEDPA standard applies, we may not overturn the California Supreme Court’s decision unless that court applied Chap- man “in an ‘objectively unreasonable’ manner.” ). When a Chapman decision is reviewed under AEDPA, “a 12 DAVIS v. AYALA Opinion of the Court federal court may not award habeas relief under unless the harmlessness demination itself was unrea- sonable.” And a state-court decision is not unreasonable if “ ‘fairminded jurists could disagree’ on [its] correctness.” at 101 (quoting 664 (2004)). Ayala therefore must show that the state court’s decision to reject his claim “was so lacking in justi- fication that there was an error well understood and com- prehended in existing law beyond any possibility for fair- minded disagreement.” 562 U.S., at In sum, a prisoner who seeks federal habeas corpus relief must satisfy and if the state court adjudi- cated his claim on the merits, the test subsumes the limitations imposed by AEDPA. –. III With this background in mind, we turn to the question whether Ayala was harmed by the trial court’s decision to receive the prosecution’s explanation for its challenged strikes without the defense present. In order for this argument to succeed, Ayala must show that he was actually prejudiced by this procedure, a standard that he neces- sarily cannot satisfy if a fairminded jurist could agree with the California Supreme Court’s decision that this proce- dure met the Chapman standard of harmlessness. Evalu- ation of these questions requires consideration of the trial court’s grounds for rejecting Ayala’s challenges. A held that the Equal Protection Clause of the Fourteenth Amendment prohibits prosecutors from exer- cising peremptory challenges on the basis of race. 476 U.S., at 89. When adjudicating a claim, trial courts follow a three-step process: “First, a defendant must make a prima facie showing Cite as: 576 U. S. (2015) 13 Opinion of the Court that a peremptory challenge has been exercised on the basis of race; second, if that showing has been made, the prosecution must offer a race-neutral basis for striking the juror in question; and third, in light of the parties’ submissions, the trial court must demine whether the defendant has shown purposeful discrim- ination.” 476–477 (2008) (innal quotation marks and alations omitted). The opponent of the strike bears the burden of persuasion regarding racial motivation, Purkett v. Elem, 514 U.S. 765, 768 (per curiam), and a trial court finding regarding the credibility of an attorney’s explanation of the ground for a peremptory challenge is “entitled to ‘great deference,’ ” (per curiam) (quoting n. 21). On direct appeal, those findings may be reversed only if the trial judge is shown to have committed clear error. Rice v. Collins, Under AEDPA, even more must be shown. A federal habeas court must accept a state-court finding unless it was based on “an unreason- able demination of the facts in light of the evidence presented in the State court proceeding.” (2). “State-court factual findings, moreover, are presumed correct; the petitioner has the burden of rebutting the presumption by ‘clear and convincing evidence.’ ” Collins, at –339 (quoting (e)(1)). In this case, Ayala challenged seven of the prosecution’s peremptory challenges. As explained above, the Ninth Circuit granted relief based on the dismissal of three potential jurors. The dissent discusses only one, Olanders D. We will devote most of our analysis to the three indi- viduals discussed by the Ninth Circuit, but we hold that any error was harmless with respect to all seven strikes. 14 DAVIS v. AYALA Opinion of the Court B 1 Ayala first contests the prosecution’s decision to chal- lenge Olanders D., an African-American man. The prose- cution stated that its “primary” reason for striking Olanders D. was uncertainty about whether he could impose the death penalty, and the prosecutor noted that Olanders D. had written on his questionnaire that he did not “believe in the death ” 50 Repor’s Tr. on Appeal 6185 (hereinaf Tr.). Providing additional rea- sons for this strike, the prosecutor first stated that Olanders D.’s responses “did not make a lot of sense,” “were not thought out,” and “demonstrate[d] a lack of ability to express himself well.” App. 283. The prosecutor also voiced doubt that Olanders D. “could actively partici- pate in a meaningful way in deliberations with other jurors” and might have lacked the “ability to fit in with a cohesive group of 12 people.” The trial court concluded that the strike was race- neutral. The judge stated: “Certainly with reference to whether or not he would get along with 12 people, it may well be that he would get along very well with 12 people. I think the other observations of counsel are accurate and borne out by the record.” 50 Tr. 6186. The California Supreme Court found that the evidence of Olanders D.’s views on the death penalty provided adequate support for the trial judge’s finding that the strike exercised against him was not based on race, and the court further found that defense counsel’s presence would not have affected the outcome of the The Ninth Circuit reversed, but its decision rested on a misapplication of the applicable harmless-error standards. 2 As the trial court and the State Supreme Court found, Olanders D.’s voir dire responses amply support the prose- Cite as: 576 U. S. (2015) 15 Opinion of the Court cution’s concern that he might not have been willing to impose the death During voir dire, Olanders D. acknowledged that he wrote on his questionnaire, “ ‘I don’t believe in the death penalty,’ ” App. 179, and he agreed that he had at one time “thought that [the death penalty] was completely wrong,” Although he stated during the voir dire that he had reconsidered his views, it was reasonable for the prosecution and the trial court to find that he did not clearly or adequately explain the reason or reasons for this change. When asked about this, Olanders D. gave a vague and rambling reply: “Well, I think it’s—one thing would be the—the—I mean, examin- ing it more closely, I think, and becoming more familiar with the laws and the—and the behavior, I mean, the change in the people, I think. All of those things contrib- uted to the changes.” The Ninth Circuit reversed because it speculated that defense counsel, if present when the prosecution explained the basis for this strike, “could have pointed to seated white jurors who had expressed similar or grea hesi- tancy” in imposing the death 6 F.3d, at 678. The Ninth Circuit wrote that a seated white juror named Ana L. was “indistinguishable from Olanders D. in this regard” and that she had “made almost precisely the same statement in her questionnaire.” The responses of Olanders D. and Ana L., however, were by no means “indistinguishable.” Olanders D. initially voiced unequivocal opposition to the death penalty, stating flatly: “I don’t believe in the death ” He also re- vealed that he had once thought it was “completely wrong.” Ana L., by contrast, wrote on the questionnaire that she “probably would not be able to vote for the death penalty,” App. 109 (emphasis added), and she then la said at voir dire that she could vote for a verdict of death. In a capital case, it is not surprising for prospective jurors to express varying degrees of hesitancy about voting 16 DAVIS v. AYALA Opinion of the Court for a death verdict. Few are likely to have experienced a need to make a comparable decision at any prior time in their lives. As a result, both the prosecution and the defense may be required to make fine judgment calls about which jurors are more or less willing to vote for the ultimate punishment. These judgment calls may involve a comparison of responses that differ in only nuanced re- spects, as well as a sensitive assessment of jurors’ de- meanor. We have previously recognized that peremptory challenges “are often the subjects of instinct,” Miller-El v. Dretke, (citing 476 U.S., at 106 (Marshall, J., concurring)), and that “race-neutral reasons for peremptory challenges often invoke a juror’s demeanor,” A trial court is best situated to evaluate both the words and the demeanor of jurors who are peremptorily challenged, as well as the credibility of the prosecutor who exercised those strikes. As we have said, “these deminations of credibility and demeanor lie peculiarly within a trial judge’s province,” and “in the absence of exceptional circumstances, we [will] defer to the trial court.” (alations and innal quotation marks omitted). “Appellate judges cannot on the basis of a cold record easily second-guess a trial judge’s decision about likely motivation.” Collins, 546 U.S., at 343 (BREYER, J., concurring). The upshot is that even if “[r]easonable minds reviewing the record might disagree about the prosecutor’s credibil- ity, on habeas review that does not suffice to supersede the trial court’s credibility demination.” at 341–342 (majority opinion). Here, any similarity between the responses of Olanders D. and Ana L. is insufficient to compel an inference of racial discrimination under or AEDPA. Ayala contends that the presence of defense counsel might have made a difference because defense counsel might have been able to identify white jurors who were Cite as: 576 U. S. (2015) 17 Opinion of the Court not stricken by the prosecution even though they had “expressed similar or grea hesitancy” about the death We see no basis for this argument. The ques- tionnaires of all the jurors who sat and all the alnates are in the record, and Ana L., whom we just discussed, is apparently the white juror whose answers come the clos- est to those of Olanders D. Since neither Ayala nor the Ninth Circuit identified a white juror whose statements bet support their argument, there is no reason to think that defense counsel could have pointed to a superior comparator at the ex parte proceeding. 3 In rejecting the argument that the prosecutor perempto- rily challenged Olanders D. because of his race, the Cali- fornia Supreme Court appears to have inpreted the prosecutor’s explanation of this strike to mean that Olanders D.’s views on the death penalty were alone suffi- cient to convince him to exercise a strike, see Cal. 4th, at and this was certainly an inpre- tation of the record that must be sustained under 28 U.S. C. (2). As a result, it is not necessary for us to consider the prosecutor’s supplementary reason for this strike—the poor quality of Olanders D.’s responses—but in any event, the Ninth Circuit’s evaluation of this reason is also flawed. The Ninth Circuit wrote that its independent “review of the voir dire transcript reveal[ed] nothing that supports the prosecution’s claim: Olanders D.’s answers were re- sponsive and complete.” 6 F.3d, at 679. The record, however, provides sufficient support for the trial court’s demination. Olanders D.’s incoherent explanation during voir dire of the reasons for his change of opinion about the death penalty was quoted above. He also pro- vided a chronology of the evolution of his views on the subject that did not hold together. He stated that he had 18 DAVIS v. AYALA Opinion of the Court been “completely against the death sentence” 10 years earlier but seemed to suggest that his views had changed over the course of the invening decade. See App. 176– 177. However, on the questionnaire, which he had com- pleted just a month before the voir dire, he wrote unequiv- ocally: “I don’t believe in the death ” And then, at the time of the voir dire, he said that he would be willing to impose the death penalty in some cases. 0. He explained his answer on the ques- tionnaire as follows: “I answered that kind of fast[.] [N]ormally, I wouldn’t answer that question that way, but I mean, I really went through that kind of fast. I should have done bet than that.” –180. These an- swers during voir dire provide more than sufficient sup- port for the prosecutor’s observation, which the trial court implicitly credited, that Olanders D.’s statements “did not make a lot of sense,” “were not thought out,” and “demon- strate[d] a lack of ability to express himself well.” In ordering federal habeas relief based on their assess- ment of the responsiveness and completeness of Olanders D.’s answers, the members of the panel majority misun- derstood the role of a federal court in a habeas case. The role of a federal habeas court is to “ ‘guard against extreme malfunctions in the state criminal justice systems,’ ” Rich- – (Stevens, J., concurring in judgment)), not to apply de novo review of factual findings and to substitute its own opinions for the demination made on the scene by the trial judge. C Ayala next challenges the prosecution’s use of a peremp- tory challenge to strike Gerardo O., a Hispanic man. The prosecution offered three reasons for this strike: Gerardo O. had a poor grasp of English; his answers during voir dire and on his questionnaire suggested that he might Cite as: 576 U. S. (2015) 19 Opinion of the Court not be willing to impose the death penalty; and he did not appear to get along with the other prospective jurors. The trial judge accepted this explanation, as did the State Supreme Court. The Ninth Circuit, however, rejected the state courts’ deminations based on speculation that defense counsel, if present at the in camera hearing, “likely could have called into question all of the prosecution’s stated reasons for striking Gerardo O.” 6 F.3d, at 680. The Ninth Circuit thought that it could grant Ayala relief simply because it “[could not] say that Ayala would not have shown that the trial court would or should have de- mined that the prosecution’s strike of Gerardo O. violated” But that is not the test. The inquiry under is not whether the federal habeas court could definitively say that there were no winning arguments that the defense could have made. Instead, the evidence in the record must raise “grave doubt[s]” about whether the trial judge would have ruled differently. O’Neal, 513 U.S., at This requires much more than a “reasonable possibility” that the result of the hearing would have been different. (innal quotation marks omitted). And on the record in this case, Ayala cannot establish actual prejudice or that no fairminded jurist could agree with the state court’s application of We begin with the prosecution’s explanation that it challenged Gerardo O. because of his limited English proficiency. During voir dire, Gerardo O. acknowledged that someone else had written the answers for him on his questionnaire “[b]ecause I couldn’t—I cannot read—I cannot spell that well.” App. 163. He added that he “didn’t get” some of the words on the questionnaire. Gerardo O.’s testimony also revealed that he might well have been unable to follow what was said at trial. When asked whether he could understand spoken English, he 20 DAVIS v. AYALA Opinion of the Court responded: “It depends if you make long words. If you make—if you go—if you say it straight out, then I might understand. If you beat around the bush, I won’t.” at 166. At that point, defense counsel and Gerardo O. en- gaged in a colloquy that suggests that defense counsel recognized that he lacked the ability to understand words not used in basic everyday speech, “legal words,” and rapid speech in English: “Q: I’ll try not to talk—use any legal words or law- yer talk— “A: Okay. “Q: —and talk regular with you. If you don’t under- stand anything I say, stop me and tell me, okay? “A: Okay. “Q: If you’re selected as a juror during the trial, and you know you’re serving as a juror and listening to witnesses, can we have your promise that if a witness uses a word you don’t understand, you’ll put your hand up and let us know? “A: Yeah. “Q: There’s one more problem that you’re going to have with me, and that is that sometimes I talk real fast” at 166–167. It is understandable for a prosecutor to strike a poten- tial juror who might have difficulty understanding Eng- lish.3 The jurors who were ultimately selected heard —————— 3 The California Supreme Court has held that “[i]nsufficient com- mand of the English language to allow full understanding of the words employed in instructions and full participation in deliberations clearly render[s] a juror ‘unable to perform his duty’ ” within the meaning of the California Penal Code. See also Cal. Code Ann. Cite as: 576 U. S. (2015) 21 Opinion of the Court many days of testimony, and the instructions at both the guilt and the penalty phases included “legal words” and words not common in everyday speech. The prosecution had an obvious reason to worry that service on this jury would have strained Gerardo O.’s linguistic capability. The Ninth Circuit reached a contrary conclusion by distorting the record and the applicable law. The Ninth Circuit first suggested that Gerardo O.’s English-language deficiencies were limited to reading and writing, 6 F.3d, at 680, but as the portions of the voir dire quoted above make clear, that was not true; the record shows that his ability to understand spoken English was also limited. The Ninth Circuit then suggested that “[t]he prosecution’s purported reason for striking Gerardo O. was directly related to his status as someone who spoke Spanish as his first language,” ib but the prosecutor voiced no concern about Gerardo O.’s ability to speak Spanish or about the fact that Spanish was his first language. The prosecu- tion’s objection concerned Gerardo O.’s limited proficiency in English. The Ninth Circuit quoted the following state- ment from (1991) (plurality opinion): “ ‘[T]he prosecutor’s frank ad- mission that his ground for excusing th[is] juror[ ] related to [his] ability to speak and understand Spanish raised a plausible, though not a necessary, inference that language might be a pretext for what in fact [was a] race-based peremptory challenge[ ].’ ” 6 F.3d, at 680 (alations in original). This statement, however, did not concern a peremptory exercised due to a prospective juror’s lack of English proficiency. Instead, it concerned the dismissal of —————— Civ. Proc. The seating of jurors whose lack of English proficiency was only somewhat more pronounced than Gerardo O.’s has been held to be error. See 22 DAVIS v. AYALA Opinion of the Court Spanish-speaking members of the venire for fear that, if seated, they might not follow the English translation of testimony given in Spanish. See The Ninth Circuit’s decision regarding Gerardo O. was thus based on a misreading of the record and a distortion of our case law. And neither Ayala nor the Ninth Circuit has identified anything that defense counsel might have done at the ex parte hearing to show that the prosecutor’s con- cern about Gerardo O.’s limited English proficiency was pretextual. The prosecution’s second proffered reason for striking Gerardo O. was concern about his willingness to impose the death penalty, and as the trial court found, this obser- vation was also supported by the record. Indeed, when asked in voir dire how he felt about imposing the death penalty, Gerardo O. responded that he was “[k]ind of shaky about it. I’m not too sure if I can take someone else’s life in my hands and say that; say, you know, ‘death,’ or something.” App. 168. In response to another question about his thoughts on the death penalty, he replied: “I don’t know yet. It’s kind of hard, you know, to pick it up like that and say how I feel about the death ” 15 Tr. 1052. Answering a question about whether his thoughts on the death penalty would affect how he viewed the evidence presented at trial, he responded, “I don’t know, sir, to tell you the truth.” App. 165. And when asked if he had “any feeling that [he] would be unable to vote for the death penalty if [he] thought it was a case that called for it,” Gerardo O. responded once again, “I don’t know.” 15 Tr. 1043. While Gerardo O. did say at one point that he might be willing to impose the death pen- alty, he qualified that statement by adding that he would be comforted by the fact that “there’s eleven more other persons on the jury.” App. 170. What we said above regarding jurors who express doubts about their openness to a death verdict applies as Cite as: 576 U. S. (2015) 23 Opinion of the Court well here. The prosecution’s reluctance to take a chance that Gerardo O. would ultimately be willing to consider the death penalty in accordance with state law did not compel the trial judge to find that the strike of Gerardo O. was based on race. Nor is there a basis for finding that the absence of de- fense counsel affected the trial judge’s evaluation of the sincerity of this proffered ground for the strike. Defense counsel had a full opportunity during voir dire to create a record regarding Gerardo O.’s openness to the death pen- alty. And defense counsel had the opportunity prior to the ex parte proceeding on the Gerardo O. strike to compare the minority jurors dismissed by the prosecution with white jurors who were seated. Counsel argued that the answers on the death penalty given by the minority jurors were “not significantly different from [those of] the white jurors that the prosecution ha[d] chosen to leave on the jury.” The trial judge asked counsel for “par- ticulars,” and counsel discussed Gerardo O., albeit briefly. –308. Thus, there is no reason to believe that counsel could have made a more persuasive argument at the ex parte proceeding than he made during this exchange. The prosecution’s final reason for striking Gerardo O. was that he appeared to be “a standoffish type of individ- ual” whose “dress and mannerisms were not in keeping with the other jurors” and who “did not appear to be socializing or mixing with any of the other jurors.” at 298. The trial judge did not dispute that the prosecu- tion’s reflections were borne out by the record. The Cali- fornia Supreme Court affirmed and also emphasized that “the trial court’s rulings in the ex parte hearing indisput- ably reflect both its familiarity with the record of voir dire of the challenged prospective jurors and its critical as- sessment of the prosecutor’s proffered justifications.” Cal. 4th, at –, DAVIS v. AYALA Opinion of the Court In light of the strength of the prosecution’s first two reasons for striking Gerardo O., it is not at all clear that the prosecution proffered this final reason as an essential factor in its decision to strike, but in any event, there is no support for the suggestion that Ayala’s attorney, if allowed to attend the ex parte hearing, would have been able to convince the judge that this reason was pretextual. The Ninth Circuit, however, was content to speculate about what might have been. Mixing guesswork with armchair sociology, the Ninth Circuit mused that “[i]t is likely that Gerardo O.’s dress and mannerisms were distinctly His- panic. Perhaps in the late 1980’s Hispanic males in San Diego County were more likely than members of other racial or ethnic groups in the area to wear a particular style or color of shirt, and Gerardo O. was wearing such a shirt.” 6 F.3d, at 680–681. As for the prosecution’s observation that Gerardo O. did not socialize with other jurors, the Ninth Circuit posited that, “perhaps, unbe- knownst to the trial judge, Gerardo O. did ‘socializ[e] or mix[ ]’ with a number of other jurors, and had even orga- nized a dinner for some of them at his favorite Mexican restaurant.” This is not how habeas review is supposed to work. The record provides no basis for the Ninth Circuit’s flight of fancy. requires more than speculation about what extrarecord information defense counsel might have men- tioned. And speculation of that type is not enough to show that a State Supreme Court’s rejection of the argument regarding Gerardo O. was unreasonable. D The final prospective juror specifically discussed in the Ninth Circuit’s decision was Robert M., who is Hispanic. The prosecution’s primary proffered reason for striking Robert M. was concern that he would not impose the death penalty, though the prosecution added that it was troubled Cite as: 576 U. S. (2015) 25 Opinion of the Court that he had followed the Sagon Penn case, a high-profile prosecution in San Diego in which an alleged murderer was acquitted amid allegations of misconduct by police and prosecutors. In addition, the prosecution also ex- plained to the trial court that Robert M. scored poorly on its 10-point scale for evaluating prospective jurors. The trial court accepted the prosecutor’s explanation of the strike. With respect to the prosecution’s concern that Robert M. might not be willing to impose the death penalty, the Ninth Circuit found that defense counsel, if permitted to attend the in camera proceeding, could have compared Robert M.’s statements about the death penalty to those of other jurors and could have reminded the judge that Rob- ert M. had “repeatedly stated during voir dire that he believed in the death penalty and could personally vote to impose it.” 6 F.3d, But as with Olanders D. and Gerardo O., we cannot say that the prosecution had no basis for doubting Robert M.’s willingness to impose the death For example, when asked at one point whether he could vote for death, Robert M. responded: “Well, I’ve though[t] about that, but it’s a difficult ques- tion, and yeah, it is difficult for me to say, you know, one way or the other. I believe in it, but for me to be involved in it is—is hard. It’s hard to accept that aspect of it, do you know what I mean?” App. 149–150. In response to another question, he said: “It would be hard, but I think I could, yes. It’s—it’s hard to say, you know—and I don’t care who the person is—to say that they have to put somebody away, you know. It’s very hard.” These are hardly answers that would inspire confidence in the minds of prosecutors in a capital case. While the Ninth Circuit argued that defense counsel’s absence at the in camera hearing prejudiced the trial judge’s ability to assess this reason for the strike of Robert M., the Ninth Circuit failed to mention that defense coun- 26 DAVIS v. AYALA Opinion of the Court sel specifically addressed this issue during voir dire. At that time, he pointedly reminded the judge that Robert M. had made several statements during voir dire that were favorable to the death The trial judge thus heard defense counsel’s arguments but nevertheless concluded that the record supplied a basis for a legitimate concern about whether Robert M. could impose the death That Ayala’s attorney did not have the oppor- tunity to repeat this same argument once more at the in camera proceeding does not create grave doubt about whether the trial court would have decided the issue differently. As for the prosecution’s second proffered reason for striking Robert M.—that he had followed the Sagon Penn case4—the Ninth Circuit placed great emphasis on the fact that a seated white juror had followed a different murder trial, that of Robert Alton Harris.5 But the Penn and Harris cases were quite different. Harris was convicted while Penn was acquitted; and since the Harris case was much older, the experience of following it was less likely to have an effect at the time of the trial in this case. E Ayala raised a objection about the prosecution’s use of peremptory challenges on four additional jurors, George S., Barbara S., Galileo S., and Luis M. The Ninth Circuit did not address these prospective jurors at length, and we need not dwell long on them. With respect to all four of these prospective jurors, we conclude that any constitutional error was harmless. Of these four additional jurors, Ayala’s brief in this Court develops an argument with respect to only two, —————— 4 See Man Acquitted of Killing Officer, N. Y. Times, July 17, p. B8. 5 See 623 P.2d 0 Cite as: 576 U. S. (2015) 27 Opinion of the Court George S. and Barbara S. And while Ayala’s attorney claimed that George S. was Hispanic, the prosecutor said that he thought that George S. was Greek. In any event, the prosecution offered several reasons for striking George S. The prosecutor noted that one of his responses “was essentially, ‘you probably don’t want me to be a juror on this case.’ ” The prosecutor was also concerned about whether he would vote for death or even a life sen- tence and whether he would follow the law as opposed to his personal religious beliefs. In addition, the prosecutor noted that George S. had previously been the sole holdout on a jury and that his prior application to be a police officer had been rejected, for reasons that were not clear. The trial court accepted these explanations. Ayala contests only two of these justifications. He quib- bles that George S. had not been a “ ‘holdout,’ ” but instead had been the dissenting juror in a civil case on which unanimity was not required. This observation does not render the prosecution’s proffered justification “false or pretextual.” Brief for Respondent 46. The fact that George S. had been willing to dissent from a jury verdict could reasonably give a prosecutor pause in a capital case since a single holdout juror could prevent a guilty verdict or death sentence. The most that Ayala can establish is that reasonable minds can disagree about whether the prosecution’s fears were well founded, but this does not come close to establishing “actual prejudice” under Nor does it meet the AEDPA standard. Ayala also points out that a seated white juror, Charles C., had been re- jected by a police force, but George S. admitted that he had applied to law enforcement because he was “trying to get out of the Army,” App. 222, and the reasons for his rejection were not clear. Charles C., by contrast, had received a qualifying score on a law enforcement exam but was not hired because a position was not available. As for Barbara S., the prosecution struck her because, 28 DAVIS v. AYALA Opinion of the Court during voir dire, she appeared to be “under the influence of drugs” and disconnected from the proceedings. at 314. The prosecution emphasized that she had “an empty look in her eyes, slow responses, a lack of really being totally in tune with what was going on.” It added that she appeared “somewhat angry,” “manifest[ed] a great deal of nervousness,” and seemed like someone who would be unlikely to closely follow the trial. The trial judge thought that Barbara S. appeared nervous rather than hostile, but he agreed that she gave incom- plete answers that were sometimes “non sequiturs.” at 315. He concluded, “I certainly cannot quarrel with your subjective impression, and the use of your peremp- tory challenge based upon her individual manifestation, as opposed to her ethnicity.” Ayala points to the trial court’s disagreement with the prosecutor’s impression that Barbara S. was hostile, but this ruling illustrates the trial judge’s recollection of the demeanor of the prospective jurors and his careful evaluation of each of the prosecu- tor’s proffered reasons for strikes. And the fact that the trial judge’s impression of Barbara S.’s demeanor was somewhat different from the prosecutor’s hardly shows that the prosecutor’s reasons were pretextual. It is not at all unusual for individuals to come to different conclusions in attempting to read another person’s attitude or mood. IV The patn of peremptory challenges in this case was sufficient to raise suspicions about the prosecution’s mo- tives and to call for the prosecution to explain its strikes. As we have held, the Fourteenth Amendment prohibits a prosecutor from striking potential jurors based on race. Discrimination in the jury selection process undermines our criminal justice system and poisons public confidence in the evenhanded administration of justice. In this Court adopted a procedure for ferreting Cite as: 576 U. S. (2015) 29 Opinion of the Court out discrimination in the exercise of peremptory challenges, and this procedure places great responsibility in the hands of the trial judge, who is in the best position to demine whether a peremptory challenge is based on an impermissible factor. This is a difficult demination because of the nature of peremptory challenges: They are often based on subtle impressions and intangible factors. In this case, the conscientious trial judge demined that the strikes at issue were not based on race, and his judg- ment was entitled to great weight. On appeal, five justices of the California Supreme Court carefully evaluated the record and found no basis to reverse. A Federal District Judge denied federal habeas relief, but a divided panel of the Ninth Circuit reversed the District Court and found that the California Supreme Court had rendered a deci- sion with which no fairminded jurist could agree. For the reasons explained above, it was the Ninth Cir- cuit that erred. The exclusion of Ayala’s attorney from part of the hearing was harmless error. There is no basis for finding that Ayala suffered actual prejudice, and the decision of the California Supreme Court repre- sented an entirely reasonable application of controlling precedent. * * * 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. Cite as: 576 U. S. (2015) 1 KENNEDY, J., concurring SUPREME COURT OF THE UNITED STATES No. 13–1428 RON DAVIS, ACTING WARDEN, PETITIONER v.	1,873
Justice Kennedy	concurring	false	Davis v. Ayala	2015-06-18	null	https://www.courtlistener.com/opinion/2809766/davis-v-ayala/	https://www.courtlistener.com/api/rest/v3/clusters/2809766/	2,015	null	null	null	null	My join in the Court’s opinion is unqualified; for, in my view, it is complete and correct in all respects. This sepa- rate writing responds only to one factual circumstance, mentioned at oral argument but with no direct bearing on the precise legal questions presented by this case. In response to a question, respondent’s counsel advised the Court that, since being sentenced to death in 1989, Ayala has served the great majority of his more than 25 years in custody in “administrative segregation” or, as it is better known, solitary confinement. Tr. of Oral Arg. 43– 44. Counsel for petitioner did not have a clear opportunity to enter the discussion, and the precise details of respond- ent’s conditions of confinement are not established in the record. Yet if his solitary confinement follows the usual pattern, it is likely respondent has been held for all or most of the past 20 years or more in a windowless cell no larger than a typical parking spot for 23 hours a day; and in the one hour when he leaves it, he likely is allowed little or no opportunity for conversation or interaction with anyone. Ibid.; see also Wilkinson v. Austin, 545 U.S. 209, 218 (2005); Amnesty International, Entombed: Isolation in the U. S. Federal Prison System (2014). It is estimated that 25,000 inmates in the United States are currently serving their sentence in whole or substantial part in 2 DAVIS v. AYALA KENNEDY, J., concurring solitary confinement, many regardless of their conduct in prison. Ibid. The human toll wrought by extended terms of isolation long has been understood, and questioned, by writers and commentators. Eighteenth-century British prison re- former John Howard wrote “that criminals who had affected an air of boldness during their trial, and appeared quite unconcerned at the pronouncing sentence upon them, were struck with horror, and shed tears when brought to these darksome solitary abodes.” The State of the Prisons in England and Wales 152 (1777). In literature, Charles Dickens recounted the toil of Dr. Manette, whose 18 years of isolation in One Hundred and Five, North Tower, caused him, even years after his release, to lapse in and out of a mindless state with almost no awareness or ap- preciation for time or his surroundings. A Tale of Two Cities (1859). And even Manette, while imprisoned, had a work bench and tools to make shoes, a type of diversion no doubt denied many of today’s inmates. One hundred and twenty-five years ago, this Court recognized that, even for prisoners sentenced to death, solitary confinement bears “a further terror and peculiar mark of infamy.” In re Medley, 134 U.S. 160, 170 (1890); see also id., at 168 (“A considerable number of the prison- ers fell, after even a short [solitary] confinement, into a semi-fatuous condition . . . and others became violently insane; others, still, committed suicide”). The past centu- ries’ experience and consideration of this issue is discussed at length in texts such as The Oxford History of the Prison: The Practice of Punishment in Western Society (1995), a joint disciplinary work edited by law professor Norval Morris and professor of medicine and psychiatry David Rothman that discusses the deprivations attendant to solitary confinement. Id., at 184. Yet despite scholarly discussion and some commentary from other sources, the condition in which prisoners are Cite as: 576 U. S. ____ (2015) 3 KENNEDY, J., concurring kept simply has not been a matter of sufficient public inquiry or interest. To be sure, cases on prison procedures and conditions do reach the courts. See, e.g., Brown v. Plata, 563 U. S. ___ (2011); Hutto v. Finney, 437 U.S. 678, 685 (1978) (“Confinement in a prison or in an isolation cell is a form of punishment subject to scrutiny under the Eighth Amendment”); Weems v. United States, 217 U.S. 349, 365–367 (1910). Sentencing judges, moreover, devote considerable time and thought to their task. There is no accepted mechanism, however, for them to take into ac- count, when sentencing a defendant, whether the time in prison will or should be served in solitary. So in many cases, it is as if a judge had no choice but to say: “In im- posing this capital sentence, the court is well aware that during the many years you will serve in prison before your execution, the penal system has a solitary confinement regime that will bring you to the edge of madness, perhaps to madness itself.” Even if the law were to condone or permit this added punishment, so stark an outcome ought not to be the result of society’s simple unawareness or indifference. Too often, discussion in the legal academy and among practitioners and policymakers concentrates simply on the adjudication of guilt or innocence. Too easily ignored is the question of what comes next. Prisoners are shut away—out of sight, out of mind. It seems fair to suggest that, in decades past, the public may have assumed law- yers and judges were engaged in a careful assessment of correctional policies, while most lawyers and judges as- sumed these matters were for the policymakers and cor- rectional experts. There are indications of a new and growing awareness in the broader public of the subject of corrections and of solitary confinement in particular. See, e.g., Gonnerman, Before the Law, The New Yorker, Oct. 6, 2014, p. 26 (de- tailing multiyear solitary confinement of Kalief Browder, 4 DAVIS v. AYALA KENNEDY, J., concurring who was held—but never tried—for stealing a backpack); Schwirtz & Winerip, Man, Held at Rikers for 3 Years Without Trial, Kills Himself, N. Y. Times, June 9, 2015, p. A18. And penalogical and psychology experts, including scholars in the legal academy, continue to offer essential information and analysis. See, e.g., Simon & Sparks, Punishment and Society: The Emergence of an Academic Field, in The SAGE Handbook of Punishment and Society (2013); see also Venters et al., Solitary Confinement and Risk of Self-Harm Among Jail Inmates, 104 Am. J. Pub. Health 442 (March 2014); Metzner & Fellner, Solitary Confinement and Mental Illness in U. S. Prisons: A Chal- lenge for Medical Ethics, 38 J. Am. Academy Psychiatry and Law 104–108 (2010). These are but a few examples of the expert scholarship that, along with continued attention from the legal com- munity, no doubt will aid in the consideration of the many issues solitary confinement presents. And consideration of these issues is needed. Of course, prison officials must have discretion to decide that in some instances tempo- rary, solitary confinement is a useful or necessary means to impose discipline and to protect prison employees and other inmates. But research still confirms what this Court suggested over a century ago: Years on end of near-total isolation exacts a terrible price. See, e.g., Grassian, Psy- chiatric Effects of Solitary Confinement, 22 Wash. U. J. L. & Pol’y 325 (2006) (common side-effects of solitary con- finement include anxiety, panic, withdrawal, hallucina- tions, self-mutilation, and suicidal thoughts and behav- iors). In a case that presented the issue, the judiciary may be required, within its proper jurisdiction and authority, to determine whether workable alternative systems for long-term confinement exist, and, if so, whether a correc- tional system should be required to adopt them. Over 150 years ago, Dostoyevsky wrote, “The degree of civilization in a society can be judged by entering its pris- Cite as: 576 U. S. ____ (2015) 5 KENNEDY, J., concurring ons.” The Yale Book of Quotations 210 (F. Shapiro ed. 2006). There is truth to this in our own time. Cite as: 576 U. S. ____ (2015) 1 THOMAS, J., concurring SUPREME COURT OF THE UNITED STATES _________________ No. 13–1428 _________________ RON DAVIS, ACTING WARDEN, PETITIONER v.	My join in the Court’s opinion is unqualified; for, in my view, it is complete and correct in all respects. This sepa- rate writing responds only to one factual circumstance, mentioned at oral argument but with no direct bearing on the precise legal questions presented by this case. In response to a question, respondent’s counsel advised the Court that, since being sentenced to death in 1989, Ayala has served the great majority of his more than 25 years in custody in “administrative segregation” or, as it is better known, solitary confinement. Tr. of Oral Arg. 43– 44. Counsel for petitioner did not have a clear opportunity to enter the discussion, and the precise details of respond- ent’s conditions of confinement are not established in the record. Yet if his solitary confinement follows the usual pattern, it is likely respondent has been held for all or most of the past 20 years or more in a windowless cell no larger than a typical parking spot for 23 hours a day; and in the one hour when he leaves it, he likely is allowed little or no opportunity for conversation or interaction with anyone. ; see also 218 (2005); Amnesty International, Entombed: Isolation in the U. S. Federal Prison System (2014). It is estimated that 25,000 inmates in the United States are currently serving their sentence in whole or substantial part in 2 DAVIS v. AYALA KENNEDY, J., concurring solitary confinement, many regardless of their conduct in prison. The human toll wrought by extended terms of isolation long has been understood, and questioned, by writers and commentators. Eighteenth-century British prison re- former John Howard wrote “that criminals who had affected an air of boldness during their trial, and appeared quite unconcerned at the pronouncing sentence upon them, were struck with horror, and shed tears when brought to these darksome solitary abodes.” The State of the Prisons in England and Wales 152 (1777). In literature, Charles Dickens recounted the toil of Dr. Manette, whose 18 years of isolation in One Hundred and Five, North Tower, caused him, even years after his release, to lapse in and out of a mindless state with almost no awareness or ap- preciation for time or his surroundings. A Tale of Two Cities (1859). And even Manette, while imprisoned, had a work bench and tools to make shoes, a type of diversion no doubt denied many of today’s inmates. One hundred and twenty-five years ago, this Court recognized that, even for prisoners sentenced to death, solitary confinement bears “a further terror and peculiar mark of infamy.” In re Medley, ; see also (“A considerable number of the prison- ers fell, after even a short [solitary] confinement, into a semi-fatuous condition and others became violently insane; others, still, committed suicide”). The past centu- ries’ experience and consideration of this issue is discussed at length in texts such as The Oxford History of the Prison: The Practice of Punishment in Western Society (1995), a joint disciplinary work edited by law professor Norval Morris and professor of medicine and psychiatry David Rothman that discusses the deprivations attendant to solitary confinement. Yet despite scholarly discussion and some commentary from other sources, the condition in which prisoners are Cite as: 576 U. S. (2015) 3 KENNEDY, J., concurring kept simply has not been a matter of sufficient public inquiry or interest. To be sure, cases on prison procedures and conditions do reach the courts. See, e.g., Brown v. Plata, 563 U. S. (2011); 685 (1978) (“Confinement in a prison or in an isolation cell is a form of punishment subject to scrutiny under the Eighth Amendment”); Weems v. United States, 217 U.S. 349, 365–367 (1910). Sentencing judges, moreover, devote considerable time and thought to their task. There is no accepted mechanism, however, for them to take into ac- count, when sentencing a defendant, whether the time in prison will or should be served in solitary. So in many cases, it is as if a judge had no choice but to say: “In im- posing this capital sentence, the court is well aware that during the many years you will serve in prison before your execution, the penal system has a solitary confinement regime that will bring you to the edge of madness, perhaps to madness itself.” Even if the law were to condone or permit this added punishment, so stark an outcome ought not to be the result of society’s simple unawareness or indifference. Too often, discussion in the legal academy and among practitioners and policymakers concentrates simply on the adjudication of guilt or innocence. Too easily ignored is the question of what comes next. Prisoners are shut away—out of sight, out of mind. It seems fair to suggest that, in decades past, the public may have assumed law- yers and judges were engaged in a careful assessment of correctional policies, while most lawyers and judges as- sumed these matters were for the policymakers and cor- rectional experts. There are indications of a new and growing awareness in the broader public of the subject of corrections and of solitary confinement in particular. See, e.g., Gonnerman, Before the Law, The New Yorker, Oct. 6, 2014, p. 26 (de- tailing multiyear solitary confinement of Kalief Browder, 4 DAVIS v. AYALA KENNEDY, J., concurring who was held—but never tried—for stealing a backpack); Schwirtz & Winerip, Man, Held at Rikers for 3 Years Without Trial, Kills Himself, N. Y. Times, June 9, 2015, p. A18. And penalogical and psychology experts, including scholars in the legal academy, continue to offer essential information and analysis. See, e.g., Simon & Sparks, Punishment and Society: The Emergence of an Academic Field, in The SAGE Handbook of Punishment and Society (2013); see also Venters et al., Solitary Confinement and Risk of Self-Harm Among Jail Inmates, 104 Am. J. Pub. Health 442 (March 2014); Metzner & Fellner, Solitary Confinement and Mental Illness in U. S. Prisons: A Chal- lenge for Medical Ethics, 38 J. Am. Academy Psychiatry and Law 104–108 (2010). These are but a few examples of the expert scholarship that, along with continued attention from the legal com- munity, no doubt will aid in the consideration of the many issues solitary confinement presents. And consideration of these issues is needed. Of course, prison officials must have discretion to decide that in some instances tempo- rary, solitary confinement is a useful or necessary means to impose discipline and to protect prison employees and other inmates. But research still confirms what this Court suggested over a century ago: Years on end of near-total isolation exacts a terrible price. See, e.g., Grassian, Psy- chiatric Effects of Solitary Confinement, 22 Wash. U. J. L. & Pol’y 325 (2006) (common side-effects of solitary con- finement include anxiety, panic, withdrawal, hallucina- tions, self-mutilation, and suicidal thoughts and behav- iors). In a case that presented the issue, the judiciary may be required, within its proper jurisdiction and authority, to determine whether workable alternative systems for long-term confinement exist, and, if so, whether a correc- tional system should be required to adopt them. Over 150 years ago, Dostoyevsky wrote, “The degree of civilization in a society can be judged by entering its pris- Cite as: 576 U. S. (2015) 5 KENNEDY, J., concurring ons.” The Yale Book of Quotations 210 (F. Shapiro ed. 2006). There is truth to this in our own time. Cite as: 576 U. S. (2015) 1 THOMAS, J., concurring SUPREME COURT OF THE UNITED STATES No. 13–1428 RON DAVIS, ACTING WARDEN, PETITIONER v.	1,874
Justice Sotomayor	dissenting	false	Davis v. Ayala	2015-06-18	null	https://www.courtlistener.com/opinion/2809766/davis-v-ayala/	https://www.courtlistener.com/api/rest/v3/clusters/2809766/	2,015	null	null	null	null	At Hector Ayala’s trial, the prosecution exercised its peremptory strikes to dismiss all seven of the potential black and Hispanic jurors. In his federal habeas petition, Ayala challenged the state trial court’s failure to permit his attorneys to participate in hearings regarding the legitimacy of the prosecution’s alleged race-neutral rea- sons for its strikes. See Batson v. Kentucky, 476 U.S. 79, 97–98 (1986). The Court assumes that defense counsel’s exclusion from these proceedings violated Ayala’s constitu- tional rights, but concludes that the Ninth Circuit erred in granting habeas relief because there is insufficient reason to believe that counsel could have convinced the trial court to reject the prosecution’s proffered reasons. I respectfully dissent. Given the strength of Ayala’s prima facie case and the comparative juror analysis his attorneys could have developed if given the opportunity to do so, little doubt exists that counsel’s exclusion from Ayala’s Batson hearings substantially influenced the outcome. I My disagreement with the Court does not stem from its discussion of the applicable standard of review, which simply restates the holding of Fry v. Pliler, 551 U.S. 112 2 DAVIS v. AYALA SOTOMAYOR, J., dissenting (2007). Fry rejected the argument that the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S. C. §2254, compels federal courts to apply any standard other than that set forth in Brecht v. Abrahamson, 507 U.S. 619 (1993), when assessing the harmlessness of a constitu- tional error on habeas review. 551 U.S., at 120. Brecht, in turn, held that the harmlessness standard federal courts must apply in collateral proceedings is more diffi- cult to meet than the “ ‘beyond a reasonable doubt’ ” stand- ard applicable on direct review. 507 U.S., at 622–623 (quoting Chapman v. California, 386 U.S. 18, 24 (1967)). More specifically, under Brecht, a federal court can grant habeas relief only when it concludes that a constitutional error had a “ ‘substantial and injurious effect or influence’ ” on either a jury verdict or a trial court decision. 507 U.S., at 623. Later, O’Neal v. McAninch, 513 U.S. 432 (1995), clarified that this standard is satisfied when a reviewing judge “is in grave doubt about whether” the error is harm- less; that is, when “the matter is so evenly balanced that [a judge] feels himself in virtual equipoise as to the harm- lessness of the error.” Id., at 435 (emphasis deleted). See also ante, at 10 (quoting O’Neal, 513 U.S., at 436). Put differently, when a federal court is in equipoise as to whether an error was actually prejudicial, it must “treat the error, not as if it were harmless, but as if it affected the verdict (i.e., as if it had a ‘substantial and injurious effect or influence in determining the jury’s verdict’).” O’Neal, 513 U.S., at 435. In addition to confirming the Brecht standard’s contin- ued vitality, Fry established its exclusivity. Fry expressly held that federal habeas courts need not first assess whether a state court unreasonably applied Chapman before deciding whether that error was prejudicial under Brecht. Such a requirement would “mak[e] no sense . . . when the latter [standard] obviously subsumes the for- mer.” Fry, 551 U.S., at 120. Nothing in the Court’s opin- Cite as: 576 U. S. ____ (2015) 3 SOTOMAYOR, J., dissenting ion today calls into question this aspect of Fry’s holding. If a trial error is prejudicial under Brecht’s standard, a state court’s determination that the error was harmless beyond a reasonable doubt is necessarily unreasonable. See ante, at 11–12. II A To apply Brecht to the facts of this case, it is essential to understand the contours of Ayala’s underlying constitu- tional claim or—perhaps more importantly—to appreciate what his claim is not. Trial judges assess criminal de- fendants’ challenges to prosecutors’ use of peremptory strikes using the three-part procedure first announced in Batson. After a defendant makes a “prima facie showing that a peremptory challenge [was] . . . exercised on the basis of race,” the prosecution is given an opportunity to “offer a race-neutral basis for striking the juror in ques- tion,” Miller-El v. Cockrell, 537 U.S. 322, 328 (2003). The court then “decid[es] whether it was more likely than not that the challenge was improperly motivated.” Johnson v. California, 545 U.S. 162, 169, 170 (2005). This determi- nation is a factual one, which—as the Court correctly notes—reviewing courts must accord “ ‘great deference.’ ” See ante, at 13 (quoting Felkner v. Jackson, 562 U.S. 594, 598 (2011) (per curiam)). Here, Ayala does not claim that the trial court wrongly rejected his Batson challenges based on the record before it. Rather, Ayala’s claim centers on the exclusion of his attorneys from the Batson hearings. Ayala contends that there is at least a grave doubt as to whether the trial or appellate court’s consideration of his Batson challenges was substantially influenced by the trial court’s erroneous refusal to permit his attorneys to appear at the hearings at which those challenges were adjudicated. Ayala’s con- viction must be vacated if there is grave doubt as to 4 DAVIS v. AYALA SOTOMAYOR, J., dissenting whether even just one of his Batson challenges would have been sustained had the defense been present. Snyder v. Louisiana, 552 U.S. 472, 478 (2008) (reversing a convic- tion after concluding that use of one peremptory strike was racially motivated). B The Court’s Brecht application begins and ends with a discussion of particular arguments the Ninth Circuit posited Ayala’s lawyers could have raised had they been present at his Batson hearings. This approach fails to account for the basic background principle that must inform the application of Brecht to Ayala’s procedural Batson claim: the “[c]ommon sense” insight “that secret decisions based on only one side of the story will prove inaccurate more often than those made after hearing from both sides.” Kaley v. United States, 571 U. S. ___, ___ (2014) (ROBERTS, C. J., dissenting) (slip op., at 16). Our entire criminal justice system was founded on the premise that “[t]ruth . . . is best discovered by powerful statements on both sides of the question.” United States v. Cronic, 466 U.S. 648, 655 (1984) (internal quotation marks omit- ted). There is no reason to believe that Batson hearings are the rare exception to this rule. Instead, defense coun- sel could have played at least two critical roles had they been present at Ayala’s Batson hearings. First, Ayala’s attorneys would have been able to call into question the credibility of the prosecution’s asserted race- neutral justifications for the use of its peremptory strikes. Of course, a trial court may identify some pretextual reasons on its own, but Snyder held that when assessing a claimed Batson error, “all of the circumstances that bear upon the issue of racial animosity must be consulted.” Snyder, 552 U.S., at 478. Absent an adversarial presen- tation, a diligent judge may overlook relevant facts or legal arguments in even a straightforward case. There is Cite as: 576 U. S. ____ (2015) 5 SOTOMAYOR, J., dissenting also great probative force to a “comparative juror analy- sis”—an analysis of whether the prosecution’s reasons for using its peremptory strikes against nonwhite jurors apply equally to white jurors whom it would have allowed to serve. Miller-El v. Dretke, 545 U.S. 231, 241 (2005). See also Snyder, 552 U.S., at 483 (emphasizing importance of conducting a comparative juror analysis in the trial court). Trial courts are ill suited to perform this intensive inquiry without defense counsel’s assistance. The risk that important arguments will not be consid- ered rises close to a certainty in a capital case like Ayala’s, where jury selection spanned more than three months, involved more than 200 prospective jurors, and generated a record that is massive by any standard. See Ayala v. Wong, 756 F.3d 656, 660, 676 (CA9 2014) (case below). It strains credulity to suggest that a court confronted with this mountain of information necessarily considered all of the facts that would have informed its credibility determi- nation without the presence of defense counsel to help bring them to its attention. Second, not only did the exclusion of defense counsel from Ayala’s Batson hearings prevent him from making his strongest arguments before the person best situated to assess their merit, it also impeded his ability to raise these claims on appeal. Because Ayala’s lawyers were not af- forded any opportunity to respond to the prosecution’s race-neutral reasons, we are left to speculate as to whether the trial court actually considered any of the points the defense would have made before it accepted the prosecu- tion’s proffered explanations. Moreover, even if we could divine which of the possible considerations the trial judge took into account, our review would still be unduly con- strained by a record that lacks whatever material facts the defense would have preserved had it been on notice of the assertions that it needed to challenge. Perhaps some of these facts, such as the jurors’ appearance and demeanor, 6 DAVIS v. AYALA SOTOMAYOR, J., dissenting were known to the trial judge, but appellate courts “can only serve [their] function when the record is clear as to the relevant facts” or when they can rely on “defense counsel[’s] fail[ure] to point out any such facts after learn- ing of the prosecutor’s reasons.” United States v. Thomp- son, 827 F.2d 1254, 1261 (CA9 1987). Neither of these conditions is met here. For the reasons described above, the fact that counsel was wrongfully excluded from Ayala’s Batson hearings on its own raises doubt as to whether the outcome of these proceedings—or the appellate courts’ review of them— would have been the same had counsel been present.1 This doubt is exacerbated by the loss of the vast majority of the questionnaires that jurors completed at the start of voir dire, including those filled out by the seven black and Hispanic jurors against whom the prosecution exercised its peremptory strikes. The prosecution cited these ques- tionnaires in support of its alleged race-neutral reasons at the ex parte Batson hearings. See e.g., App. 283, 298, 312, 314, 316. Without the underlying documents, however, it is impossible to assess whether the prosecution’s charac- terizations of those prospective jurors’ responses were fair and accurate. The loss of the questionnaires has also precluded every court that has reviewed this case from performing a comprehensive comparative juror analysis. The Court today analyzes how the prosecution’s state- ments at the ex parte Batson hearings regarding the black and Hispanic jurors’ questionnaires stack up against the —————— 1 Indeed, in a future case arising in a direct review posture, the Court may have occasion to consider whether the error that the Court as- sumes here gives rise to “circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified.” United States v. Cronic, 466 U.S. 648, 658 (1984). See also Mickens v. Taylor, 535 U.S. 162, 166 (2002) (noting that we have “presumed [prejudicial] effec[t] where assistance of counsel has been denied entirely or during a critical stage of the proceeding”). Cite as: 576 U. S. ____ (2015) 7 SOTOMAYOR, J., dissenting actual questionnaires completed by the white seated jurors and alternates. But there is no way to discern how these representations compare with the answers that were given by white jurors whom the prosecution would have permitted to serve but whom the defense ultimately struck. See Miller-El v. Dretke, 545 U.S., at 244–245 (comparing a juror struck by the prosecution with a juror challenged only by the defense). C The above-described consequences of the trial court’s procedural error and the fact that the prosecution struck every potential black or Hispanic juror go a long way toward establishing the degree of uncertainty that Brecht requires. Keeping these considerations in mind, the next step is to assess the arguments that Ayala’s attorneys may have raised had they been allowed to participate at his Batson hearings. As explained above, Ayala is entitled to habeas relief if a reviewing judge is in “equipoise” as to whether his lawyers’ exclusion from the Batson hearings had an “injurious effect” on the trial court’s failure to find by a preponderance of the evidence that any of the prose- cution’s peremptory strikes was racially motivated. With the inquiry so framed, it is easy to see that the Ninth Circuit correctly found that Ayala was actually prejudiced by the trial court’s constitutional error. In particular, there is a substantial likelihood that if defense counsel had been present, Ayala could at least have convinced the trial court that the race-neutral reasons the prosecution put forward for dismissing a black juror, Olanders D., were pretextual.2 —————— 2 Because Ayala was actually prejudiced by his counsel’s exclusion from the Batson hearing on Olanders D., there is no need to address his claims concerning the other black and Hispanic jurors. That said, Ayala’s attorneys may have had strong arguments with respect to those jurors too. Moreover, Ayala’s Batson challenge to Olanders D. would 8 DAVIS v. AYALA SOTOMAYOR, J., dissenting The prosecution offered three justifications for striking Olanders D.: (1) he might be unable to vote for the death penalty because he had written in his questionnaire that “he does not believe [in] it” and had failed to fully explain a subsequent change in position; (2) his questionnaire answers were poor; and, (3) he might lack the “ability to fit in with a cohesive group of 12 people.” App. 283. The trial court rejected the third of these reasons outright, noting that “it may well . . . be that he would get along very well with 12 people.” Id., at 283–284. I have grave misgivings as to whether the trial judge would have found it more likely than not that the first two purported bases were legitimate had defense counsel been given an opportunity to respond to them. Ayala’s attorneys could have challenged the prosecu- tion’s claim that Olanders D. would hesitate to impose the death penalty by pointing to a seated juror—Ana L.—who made remarkably similar statements concerning capital punishment. Based on his remarks during voir dire, it appears that Olanders D. suggested on his questionnaire that he was or had been opposed to the death penalty.3 Id., at 176, 179. Ana L.’s questionnaire contained numer- ous comparable statements. When asked to express her “feelings about the death penalty,” she wrote: “I don’t believe in taking a life.” Id., at 108. And, in response to a question regarding whether she “would like to serve as a —————— have been even stronger had counsel been given the opportunity to demonstrate that some of the reasons given for striking the other black and Hispanic jurors were pretextual. See Snyder v. Louisiana, 552 U.S. 472, 478 (2008) (observing that courts should “consider the strike of [one juror] for the bearing it might have upon the strike of [a second juror]”). 3 It is, of course, impossible to verify what Olanders D. said in his questionnaire because that document is not in the record. If Ayala’s lawyers had been present at Olanders D.’s Batson hearing, they may have argued that his questionnaire showed that his position on capital punishment had changed over time. See Part III, infra. Cite as: 576 U. S. ____ (2015) 9 SOTOMAYOR, J., dissenting juror and why?”, Ana L. said: “no—If I am selected as a Juror and all Jurors voted for the death penalty I probably would not be able to vote for the death penalty.” Id., at 109. Finally, on her questionnaire, Ana L. indicated that she believes the death penalty is imposed “[t]oo often” and that she strongly disagrees with the “adage, ‘An eye for any eye,’ ” which she understood to mean,“[a] criminal took a life[,] now [it] is our turn to take his.” Id., at 108–109. A direct comparison of Olanders D.’s and Ana L.’s voir dire answers is equally telling. During voir dire, Olanders D. clarified that he had not intended his ques- tionnaire to reflect that he was categorically opposed to the death penalty, but only that his views on the topic had evolved over the prior decade and that he had come to believe that the death penalty “would be an appropriate sentence under certain circumstances.” Id., at 176. To account for this change in his position, Olanders D. cited a number of considerations, including a new understanding of what his religion required, ibid., “more familiar[ity] with the laws,” id., at 178, increased violence in our soci- ety, ibid., and conversations with his immediate family, id., at 180. Ana L., by contrast, stated at voir dire that she “strongly . . . did not believe in the death penalty” up until she “[f]illed out the questionnaire.” Id., at 193. And, only after repeated attempts by both the defense and the prose- cution to get her to pinpoint what caused this sudden about face, Ana L. said that she had “listen[ed] to the Bundy evidence that was said and his being put to death, and I started to think; and I said if they were guilty maybe there is a death sentence for these people.” Id., at 202.4 —————— 4 The Court claims that Olanders D. was less than eloquent in de- scribing his thought process. Ante, at 15. But it is not difficult to understand what he meant. In any event, as the Court later concedes, prospective jurors are likely to struggle when asked to express their views on the death penalty. Ante, at 16. Ana L. was no exception. For instance, when defense counsel first asked her to describe her thought 10 DAVIS v. AYALA SOTOMAYOR, J., dissenting Based on this record, it requires little speculation to see that defense counsel could have made a powerful argu- ment that Ana L. was equally or even less likely to impose the death penalty than Olanders D. While both jurors had opposed the death penalty at some point in the past, Olanders D. stated that he had come to believe in capital punishment after a period of sustained deliberation. Ana L., however, purported to change her view due only to one recent execution and the fact that she had been called to serve as a juror on a capital case. Moreover, there is no basis to think that the trial court accounted for the simi- larities between Ana L. and Olanders D. Approximately two months passed between Olanders D.’s and Ana L.’s voir dire hearings and the date on which the prosecution exercised its peremptory strike against Olanders D. Without the benefit of defense counsel to help jog his recollection, it is absurd to proceed as if the trial judge actually considered one of more than 200 prospective jurors’ statements concerning the death penalty when ruling on Ayala’s Batson motion. Taken together, it seems highly likely that these arguments—had they been raised—would have convinced the trial judge that the prosecution’s first alleged reason for striking Olanders D. was pretextual. As for the prosecution’s second purported justification— that his questionnaire responses “were poor,” id., at 283— it is impossible to know what winning arguments the defense could have raised because the questionnaire itself is missing from the record.5 Indeed, for all that is known, —————— process, she responded, “Up to [when I filled out my questionnaire], I did not believe in putting someone to death.” App. at 194. She contin- ued: “But being that you’ve given me the—the opportunity to come over here, seeing something that is not correct in the system, it wouldn’t be no problem . . . for me to give to come to a decision on the death penalty anymore.” Ibid. 5 The Court states that the prosecution’s second purported race- Cite as: 576 U. S. ____ (2015) 11 SOTOMAYOR, J., dissenting counsel may have had a compelling argument that Olanders D.’s answers were cogent and complete. Even if some of them were lacking, however, counsel could still have drawn the trial judge’s attention to weak question- naires completed by several of the seated jurors. For instance, if the prosecution’s claim was that Olanders D.’s questionnaire answers were conclusory, Ayala’s counsel could have referred the Court to seated juror Charles G.’s questionnaire. In response to a prompt asking prospective jurors to explain why they would or would not like to be empaneled in Ayala’s case, Charles G. wrote only “No.” Id., at 71. Alternatively, if the prosecution’s concern was that Olanders D.’s answer to a particular question demon- strated an inability to clearly express himself, the defense could have directed the court’s attention to the question- naire completed by seated juror Thomas B. When asked to share his “impressions or feelings . . . about gangs based on what [he had] read or s[een],” Thomas B. stated: “I feel the only media coverage they get is bad, however, those whom do constructive events usually seek out positive media coverage.” Id., at 30. Finally, it bears noting that if Ayala’s lawyers had been able to respond at the Batson hearing, they would have had the questionnaires of many more comparable jurors at their disposal. It is entirely possible that some of the questionnaires completed by prospective jurors who were accepted by the prosecution but dismissed by the defense were weaker than those completed by Charles G. and Thomas B. In short, it is probable that had Ayala’s lawyers been present at the Batson hearing on Olanders D., his strong —————— neutral reason for striking Olanders D. was that his “responses” were poor, but it conveniently neglects to mention that the responses to which the prosecution referred were clearly those Olanders D. gave on his questionnaire. Ante, at 14; see App. 283 (“My observations in reading his questionnaire and before even making note of his racial orientation was that his responses were poor”). 12 DAVIS v. AYALA SOTOMAYOR, J., dissenting Batson claim would have turned out to be a winning one. The trial judge rejected one of the reasons advanced by the prosecution on its own and the defense had numerous persuasive arguments that it could have leveled against the remaining two justifications had it been given the opportunity to do so. III The Court concludes that Ayala is not entitled to habeas relief because it finds that there is little or no reason to doubt that the trial judge would have accepted both of the above-discussed reasons for striking Olanders D. even if counsel participated at Ayala’s Batson hearings. The Court’s analysis, however, misunderstands the record and mistakes Ayala’s procedural Batson claim for a direct challenge to a trial court’s denial of a Batson motion. In defense of the prosecution’s first basis for striking Olanders D.—that he was uncomfortable with the death penalty—the Court begins by asserting that Ana L. was insufficiently similar to Olanders D. to have cast any doubt on the prosecution’s position. Olanders D., the Court maintains, “initially voiced unequivocal opposition to the death penalty,” whereas Ana L. “wrote on [her] questionnaire that she ‘probably would not be able to vote for the death penalty.’ ” Ante, at 15–16 (emphasis in origi- nal). But the Court has plucked one arguably ambiguous statement from Ana L.’s questionnaire while ignoring others (described above) suggesting that she fundamen- tally opposed capital punishment. More importantly, the Court is not comparing apples with apples. Because Olanders D.’s questionnaire has been lost, there is no way to know the extent to which the views he expressed there were “unequivocal.” Consequently, in support of its con- tention that Olanders D. originally wrote that he was categorically opposed to the death penalty, the Court relies on his response to a question posed by the prosecu- Cite as: 576 U. S. ____ (2015) 13 SOTOMAYOR, J., dissenting tion during voir dire. To be sure, when asked whether he had stated that he did not “believe in the death penalty” on his questionnaire, Olanders D. responded: “That’s correct.” App. 179. During voir dire, however, Ana L. described the position she had taken in her questionnaire in identical terms, stating: “I remember saying [on my questionnaire] that I didn’t believe in the death penalty.” Id., at 201. Given the difficulty of differentiating between Ana L.’s and Olanders D.’s views toward the death penalty based on the record before us, the Court understandably does not press this factual point further. Instead, it commits a legal error by contending that the trial court’s determina- tion is entitled to deference because the judge—unlike this Court—had the benefit of observing both Olanders D.’s and the prosecution’s demeanor. Ante, at 16. Deference may be warranted when reviewing a substantive Batson claim. By suggesting that a trial judge can make a sound credibility determination without the benefit of an adver- sarial proceeding, however, the Court ignores the proce- dural nature of the constitutional error whose existence it purports to assume. Courts defer to credibility findings not only because of trial judges’ proximity to courtroom events, but also because of the expectations regarding the procedures used in the proceedings that they oversee. A decision to credit a prosecution’s race-neutral basis for striking a juror is entitled to great weight if that reason has “survive[d] the crucible of meaningful adversarial testing.” Cronic, 466 U.S., at 656. It warrants substan- tially less—if any—deference where, as here, it is made in the absence of the “fundamental instrument for judicial judgment: an adversary proceeding in which both parties may participate.” Carroll v. President and Comm’rs of Princess Anne, 393 U.S. 175, 183 (1968); see also Kaley, 571 U. S., at ___ (ROBERTS, C. J., dissenting) (slip op., at 16) (“It takes little imagination to see that . . . ex parte 14 DAVIS v. AYALA SOTOMAYOR, J., dissenting proceedings create a heightened risk of error”).6 The Court’s analysis of the second reason put forward for striking Olanders D.—that his questionnaire was faulty— fares no better. As a preliminary matter, perhaps because Olanders D.’s questionnaire has been lost, the Court characterizes the prosecution’s second proffered reason for dismissing Olanders D. as an objection to all of his “responses” as opposed to simply the responses on his questionnaire. Ante, at 14. But even if the prosecution had relied on the rationale that the Court now substitutes, there is a real likelihood that the defense would still have been able to undermine its credibility. The Court asserts that Olanders D.’s “responses” were misleading because he had “unequivocally” stated that he did not believe in the death penalty on his questionnaire, but at voir dire he said that his views on capital punish- ment had changed over the previous 10 years. Ante, at 18. The Court’s argument thus hinges on the premise that Olanders D.’s questionnaire clearly stated that he was opposed to the death penalty. At least one person, how- ever, did not construe Olander D.’s questionnaire to express such a categorical view: defense counsel. During voir dire, one of Ayala’s lawyers remarked that she thought Olanders D.’s questionnaire “indicated that [he] had had some change in [his] feelings about the death penalty.” App. 176. “[M]y understanding,” she said, “is that at one time [he] felt one way, and—and then at some point [he] felt differently.” Ibid. Thus, if (as the Court now hypothe- sizes) the trial court was inclined to accept the prosecu- tion’s second reason for striking Olanders D. based on apparent tension between his questionnaire and his —————— 6 None of the cases the Court cites are inconsistent with this logic. Miller-El v. Dretke, 545 U.S. 231, 236–237 (2005), Snyder, 552 U.S., at 474, and Rice v. Collins, 546 U.S. 333, 336 (2006), all concerned direct challenges to a trial court’s denial of a Batson motion as opposed to procedural Batson claims. Cite as: 576 U. S. ____ (2015) 15 SOTOMAYOR, J., dissenting statements during voir dire (a proposition that is itself uncertain), the defense may have been able to argue per- suasively that any claimed inconsistency was illusory. * * * Batson recognized that it is fundamentally unfair to permit racial considerations to drive the use of peremptory challenges against jurors. When the prosecution strikes every potential black and Hispanic juror, a reviewing court has a responsibility to ensure that the trial court’s denial of the defendant’s Batson motion was not influ- enced by constitutional error. But there is neither a fac- tual nor a legal basis for the Court’s confidence that the prosecution’s race-neutral reasons for striking Olanders D. were unassailable. Because the Court overlooks that Ayala raised a procedural Batson claim, it scours the record for possible support for the trial court’s credibility determination without accounting for the flaws in the process that led to it. The proper inquiry is not whether the trial court’s determination can be sustained, but whether it may have been different had counsel been present. Given the strength of Ayala’s prima facie case and the arguments his counsel would have been able to make based even on the limited existing record, grave doubts exist as to whether counsel’s exclusion from Ayala’s Batson hearings was harmless. Accordingly, I respectfully dissent	At Hector Ayala’s trial, the prosecution exercised its peremptory strikes to dismiss all seven of the potential black and Hispanic jurors. In his federal habeas petition, Ayala challenged the state trial court’s failure to permit his attorneys to participate in hearings regarding the legitimacy of the prosecution’s alleged race-neutral rea- sons for its strikes. See 97–98 (1986). The Court assumes that defense counsel’s exclusion from these proceedings violated Ayala’s constitu- tional rights, but concludes that the Ninth Circuit erred in granting habeas relief because there is insufficient reason to believe that counsel could have convinced the trial court to reject the prosecution’s proffered reasons. I respectfully dissent. Given the strength of Ayala’s prima facie case and the comparative juror analysis his attorneys could have developed if given the opportunity to do so, little doubt exists that counsel’s exclusion from Ayala’s Batson hearings substantially influenced the outcome. I My disagreement with the Court does not stem from its discussion of the applicable standard of review, which simply restates the holding of 2 DAVIS v. AYALA SOTOMAYOR, J., dissenting (2007). rejected the argument that the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S. C. compels federal courts to apply any standard other than that set forth in (1993), when assessing the harmlessness of a constitu- tional error on habeas Brecht, in turn, held that the harmlessness standard federal courts must apply in collateral proceedings is more diffi- cult to meet than the “ ‘beyond a reasonable doubt’ ” stand- ard applicable on direct –623 ). More specifically, under Brecht, a federal court can grant habeas relief only when it concludes that a constitutional error had a “ ‘substantial and injurious effect or influence’ ” on either a jury verdict or a trial court decision. 507 U.S., at 623. Later, clarified that this standard is satisfied when a reviewing judge “is in grave doubt about whether” the error is harm- less; that is, when “the matter is so evenly balanced that [a judge] feels himself in virtual equipoise as to the harm- lessness of the error.” See also ante, at 10 (quoting O’, ). Put differently, when a federal court is in equipoise as to whether an error was actually prejudicial, it must “treat the error, not as if it were harmless, but as if it affected the verdict (i.e., as if it had a ‘substantial and injurious effect or influence in determining the jury’s verdict’).” O’, 513 U.S., In addition to confirming the Brecht standard’s contin- ued vitality, established its exclusivity. expressly held that federal habeas courts need not first assess whether a state court unreasonably applied Chapman before deciding whether that error was prejudicial under Brecht. Such a requirement would “mak[e] no sense when the latter [standard] obviously subsumes the for- mer.” Nothing in the Court’s opin- Cite as: 576 U. S. (2015) 3 SOTOMAYOR, J., dissenting ion today calls into question this aspect of ’s holding. If a trial error is prejudicial under Brecht’s standard, a state court’s determination that the error was harmless beyond a reasonable doubt is necessarily unreasonable. See ante, at 11–12. II A To apply Brecht to the facts of this case, it is essential to understand the contours of Ayala’s underlying constitu- tional claim or—perhaps more importantly—to appreciate what his claim is not. Trial judges assess criminal de- fendants’ challenges to prosecutors’ use of peremptory strikes using the three-part procedure first announced in Batson. After a defendant makes a “prima facie showing that a peremptory challenge [was] exercised on the basis of race,” the prosecution is given an opportunity to “offer a race-neutral basis for striking the juror in ques- tion,” The court then “decid[es] whether it was more likely than not that the challenge was improperly motivated.” Johnson v. California, This determi- nation is a factual one, which—as the Court correctly notes—reviewing courts must accord “ ‘great deference.’ ” See ante, at 13 (quoting 598 (2011) (per curiam)). Here, Ayala does not claim that the trial court wrongly rejected his Batson challenges based on the record before it. Rather, Ayala’s claim centers on the exclusion of his attorneys from the Batson hearings. Ayala contends that there is at least a grave doubt as to whether the trial or appellate court’s consideration of his Batson challenges was substantially influenced by the trial court’s erroneous refusal to permit his attorneys to appear at the hearings at which those challenges were adjudicated. Ayala’s con- viction must be vacated if there is grave doubt as to 4 DAVIS v. AYALA SOTOMAYOR, J., dissenting whether even just one of his Batson challenges would have been sustained had the defense been present. v. Louisiana, (reversing a convic- tion after concluding that use of one peremptory strike was racially motivated). B The Court’s Brecht application begins and ends with a discussion of particular arguments the Ninth Circuit posited Ayala’s lawyers could have raised had they been present at his Batson hearings. This approach fails to account for the basic background principle that must inform the application of Brecht to Ayala’s procedural Batson claim: the “[c]ommon sense” insight “that secret decisions based on only one side of the story will prove inaccurate more often than those made after hearing from both sides.” Kaley v. United States, 571 U. S. (ROBERTS, C. J., dissenting) (slip op., at 16). Our entire criminal justice system was founded on the premise that “[t]ruth is best discovered by powerful statements on both sides of the question.” United (internal quotation marks omit- ted). There is no reason to believe that Batson hearings are the rare exception to this rule. Instead, defense coun- sel could have played at least two critical roles had they been present at Ayala’s Batson hearings. First, Ayala’s attorneys would have been able to call into question the credibility of the prosecution’s asserted race- neutral justifications for the use of its peremptory strikes. Of course, a trial court may identify some pretextual reasons on its own, but held that when assessing a claimed Batson error, “all of the circumstances that bear upon the issue of racial animosity must be consulted.” 552 U.S., at Absent an adversarial presen- tation, a diligent judge may overlook relevant facts or legal arguments in even a straightforward case. There is Cite as: 576 U. S. (2015) 5 SOTOMAYOR, J., dissenting also great probative force to a “comparative juror analy- sis”—an analysis of whether the prosecution’s reasons for using its peremptory strikes against nonwhite jurors apply equally to white jurors whom it would have allowed to serve. 1 See also (emphasizing importance of conducting a comparative juror analysis in the trial court). Trial courts are ill suited to perform this intensive inquiry without defense counsel’s assistance. The risk that important arguments will not be consid- ered rises close to a certainty in a capital case like Ayala’s, where jury selection spanned more than three months, involved more than 200 prospective jurors, and generated a record that is massive by any standard. See Ayala v. Wong, It strains credulity to suggest that a court confronted with this mountain of information necessarily considered all of the facts that would have informed its credibility determi- nation without the presence of defense counsel to help bring them to its attention. Second, not only did the exclusion of defense counsel from Ayala’s Batson hearings prevent him from making his strongest arguments before the person best situated to assess their merit, it also impeded his ability to raise these claims on appeal. Because Ayala’s lawyers were not af- forded any opportunity to respond to the prosecution’s race-neutral reasons, we are left to speculate as to whether the trial court actually considered any of the points the defense would have made before it accepted the prosecu- tion’s proffered explanations. Moreover, even if we could divine which of the possible considerations the trial judge took into account, our review would still be unduly con- strained by a record that lacks whatever material facts the defense would have preserved had it been on notice of the assertions that it needed to challenge. Perhaps some of these facts, such as the jurors’ appearance and demeanor, 6 DAVIS v. AYALA SOTOMAYOR, J., dissenting were known to the trial judge, but appellate courts “can only serve [their] function when the record is clear as to the relevant facts” or when they can rely on “defense counsel[’s] fail[ure] to point out any such facts after learn- ing of the prosecutor’s reasons.” United Neither of these conditions is met here. For the reasons described above, the fact that counsel was wrongfully excluded from Ayala’s Batson hearings on its own raises doubt as to whether the outcome of these proceedings—or the appellate courts’ review of them— would have been the same had counsel been present.1 This doubt is exacerbated by the loss of the vast majority of the questionnaires that jurors completed at the start of voir dire, including those filled out by the seven black and Hispanic jurors against whom the prosecution exercised its peremptory strikes. The prosecution cited these ques- tionnaires in support of its alleged race-neutral reasons at the ex parte Batson hearings. See e.g., App. 283, 298, 312, 314, 316. Without the underlying documents, however, it is impossible to assess whether the prosecution’s charac- terizations of those prospective jurors’ responses were fair and accurate. The loss of the questionnaires has also precluded every court that has reviewed this case from performing a comprehensive comparative juror analysis. The Court today analyzes how the prosecution’s state- ments at the ex parte Batson hearings regarding the black and Hispanic jurors’ questionnaires stack up against the —————— 1 Indeed, in a future case arising in a direct review posture, the Court may have occasion to consider whether the error that the Court as- sumes here gives rise to “circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified.” United See also (noting that we have “presumed [prejudicial] effec[t] where assistance of counsel has been denied entirely or during a critical stage of the proceeding”). Cite as: 576 U. S. (2015) 7 SOTOMAYOR, J., dissenting actual questionnaires completed by the white seated jurors and alternates. But there is no way to discern how these representations compare with the answers that were given by white jurors whom the prosecution would have permitted to serve but whom the defense ultimately struck. See 545 U.S., at 4–5 (comparing a juror struck by the prosecution with a juror challenged only by the defense). C The above-described consequences of the trial court’s procedural error and the fact that the prosecution struck every potential black or Hispanic juror go a long way toward establishing the degree of uncertainty that Brecht requires. Keeping these considerations in mind, the next step is to assess the arguments that Ayala’s attorneys may have raised had they been allowed to participate at his Batson hearings. As explained above, Ayala is entitled to habeas relief if a reviewing judge is in “equipoise” as to whether his lawyers’ exclusion from the Batson hearings had an “injurious effect” on the trial court’s failure to find by a preponderance of the evidence that any of the prose- cution’s peremptory strikes was racially motivated. With the inquiry so framed, it is easy to see that the Ninth Circuit correctly found that Ayala was actually prejudiced by the trial court’s constitutional error. In particular, there is a substantial likelihood that if defense counsel had been present, Ayala could at least have convinced the trial court that the race-neutral reasons the prosecution put forward for dismissing a black juror, Olanders D., were pretextual.2 —————— 2 Because Ayala was actually prejudiced by his counsel’s exclusion from the Batson hearing on Olanders D., there is no need to address his claims concerning the other black and Hispanic jurors. That said, Ayala’s attorneys may have had strong arguments with respect to those jurors too. Moreover, Ayala’s Batson challenge to Olanders D. would 8 DAVIS v. AYALA SOTOMAYOR, J., dissenting The prosecution offered three justifications for striking Olanders D.: (1) he might be unable to vote for the death penalty because he had written in his questionnaire that “he does not believe [in] it” and had failed to fully explain a subsequent change in position; (2) his questionnaire answers were poor; and, (3) he might lack the “ability to fit in with a cohesive group of 12 people.” App. 283. The trial court rejected the third of these reasons outright, noting that “it may well be that he would get along very well with 12 people.” at 283–284. I have grave misgivings as to whether the trial judge would have found it more likely than not that the first two purported bases were legitimate had defense counsel been given an opportunity to respond to them. Ayala’s attorneys could have challenged the prosecu- tion’s claim that Olanders D. would hesitate to impose the death penalty by pointing to a seated juror—Ana L.—who made remarkably similar statements concerning capital punishment. Based on his remarks during voir dire, it appears that Olanders D. suggested on his questionnaire that he was or had been opposed to the death penalty.3 Ana L.’s questionnaire contained numer- ous comparable statements. When asked to express her “feelings about the death penalty,” she wrote: “I don’t believe in taking a life.” And, in response to a question regarding whether she “would like to serve as a —————— have been even stronger had counsel been given the opportunity to demonstrate that some of the reasons given for striking the other black and Hispanic jurors were pretextual. See v. Louisiana, 552 U.S. 472, (observing that courts should “consider the strike of [one juror] for the bearing it might have upon the strike of [a second juror]”). 3 It is, of course, impossible to verify what Olanders D. said in his questionnaire because that document is not in the record. If Ayala’s lawyers had been present at Olanders D.’s Batson hearing, they may have argued that his questionnaire showed that his position on capital punishment had changed over time. See Part III, infra. Cite as: 576 U. S. (2015) 9 SOTOMAYOR, J., dissenting juror and why?”, Ana L. said: “no—If I am selected as a Juror and all Jurors voted for the death penalty I probably would not be able to vote for the death penalty.” at 109. Finally, on her questionnaire, Ana L. indicated that she believes the death penalty is imposed “[t]oo often” and that she strongly disagrees with the “adage, ‘An eye for any eye,’ ” which she understood to mean,“[a] criminal took a life[,] now [it] is our turn to take his.” –109. A direct comparison of Olanders D.’s and Ana L.’s voir dire answers is equally telling. During voir dire, Olanders D. clarified that he had not intended his ques- tionnaire to reflect that he was categorically opposed to the death penalty, but only that his views on the topic had evolved over the prior decade and that he had come to believe that the death penalty “would be an appropriate sentence under certain circumstances.” To account for this change in his position, Olanders D. cited a number of considerations, including a new understanding of what his religion required, ib “more familiar[ity] with the laws,” increased violence in our soci- ety, ib and conversations with his immediate family, at 180. Ana L., by contrast, stated at voir dire that she “strongly did not believe in the death penalty” up until she “[f]illed out the questionnaire.” And, only after repeated attempts by both the defense and the prose- cution to get her to pinpoint what caused this sudden about face, Ana L. said that she had “listen[ed] to the Bundy evidence that was said and his being put to death, and I started to think; and I said if they were guilty maybe there is a death sentence for these people.”4 —————— 4 The Court claims that Olanders D. was less than eloquent in de- scribing his thought process. Ante, at 15. But it is not difficult to understand what he meant. In any event, as the Court later concedes, prospective jurors are likely to struggle when asked to express their views on the death penalty. Ante, at 16. Ana L. was no exception. For instance, when defense counsel first asked her to describe her thought 10 DAVIS v. AYALA SOTOMAYOR, J., dissenting Based on this record, it requires little speculation to see that defense counsel could have made a powerful argu- ment that Ana L. was equally or even less likely to impose the death penalty than Olanders D. While both jurors had opposed the death penalty at some point in the past, Olanders D. stated that he had come to believe in capital punishment after a period of sustained deliberation. Ana L., however, purported to change her view due only to one recent execution and the fact that she had been called to serve as a juror on a capital case. Moreover, there is no basis to think that the trial court accounted for the simi- larities between Ana L. and Olanders D. Approximately two months passed between Olanders D.’s and Ana L.’s voir dire hearings and the date on which the prosecution exercised its peremptory strike against Olanders D. Without the benefit of defense counsel to help jog his recollection, it is absurd to proceed as if the trial judge actually considered one of more than 200 prospective jurors’ statements concerning the death penalty when ruling on Ayala’s Batson motion. Taken together, it seems highly likely that these arguments—had they been raised—would have convinced the trial judge that the prosecution’s first alleged reason for striking Olanders D. was pretextual. As for the prosecution’s second purported justification— that his questionnaire responses “were poor,” at 283— it is impossible to know what winning arguments the defense could have raised because the questionnaire itself is missing from the record.5 Indeed, for all that is known, —————— process, she responded, “Up to [when I filled out my questionnaire], I did not believe in putting someone to death.” App. at 194. She contin- ued: “But being that you’ve given me the—the opportunity to come over here, seeing something that is not correct in the system, it wouldn’t be no problem for me to give to come to a decision on the death penalty anymore.” 5 The Court states that the prosecution’s second purported race- Cite as: 576 U. S. (2015) 11 SOTOMAYOR, J., dissenting counsel may have had a compelling argument that Olanders D.’s answers were cogent and complete. Even if some of them were lacking, however, counsel could still have drawn the trial judge’s attention to weak question- naires completed by several of the seated jurors. For instance, if the prosecution’s claim was that Olanders D.’s questionnaire answers were conclusory, Ayala’s counsel could have referred the Court to seated juror Charles G.’s questionnaire. In response to a prompt asking prospective jurors to explain why they would or would not like to be empaneled in Ayala’s case, Charles G. wrote only “No.” Alternatively, if the prosecution’s concern was that Olanders D.’s answer to a particular question demon- strated an inability to clearly express himself, the defense could have directed the court’s attention to the question- naire completed by seated juror Thomas B. When asked to share his “impressions or feelings about gangs based on what [he had] read or s[een],” Thomas B. stated: “I feel the only media coverage they get is bad, however, those whom do constructive events usually seek out positive media coverage.” Finally, it bears noting that if Ayala’s lawyers had been able to respond at the Batson hearing, they would have had the questionnaires of many more comparable jurors at their disposal. It is entirely possible that some of the questionnaires completed by prospective jurors who were accepted by the prosecution but dismissed by the defense were weaker than those completed by Charles G. and Thomas B. In short, it is probable that had Ayala’s lawyers been present at the Batson hearing on Olanders D., his strong —————— neutral reason for striking Olanders D. was that his “responses” were poor, but it conveniently neglects to mention that the responses to which the prosecution referred were clearly those Olanders D. gave on his questionnaire. Ante, at 14; see App. 283 (“My observations in reading his questionnaire and before even making note of his racial orientation was that his responses were poor”). 12 DAVIS v. AYALA SOTOMAYOR, J., dissenting Batson claim would have turned out to be a winning one. The trial judge rejected one of the reasons advanced by the prosecution on its own and the defense had numerous persuasive arguments that it could have leveled against the remaining two justifications had it been given the opportunity to do so. III The Court concludes that Ayala is not entitled to habeas relief because it finds that there is little or no reason to doubt that the trial judge would have accepted both of the above-discussed reasons for striking Olanders D. even if counsel participated at Ayala’s Batson hearings. The Court’s analysis, however, misunderstands the record and mistakes Ayala’s procedural Batson claim for a direct challenge to a trial court’s denial of a Batson motion. In defense of the prosecution’s first basis for striking Olanders D.—that he was uncomfortable with the death penalty—the Court begins by asserting that Ana L. was insufficiently similar to Olanders D. to have cast any doubt on the prosecution’s position. Olanders D., the Court maintains, “initially voiced unequivocal opposition to the death penalty,” whereas Ana L. “wrote on [her] questionnaire that she ‘probably would not be able to vote for the death penalty.’ ” Ante, at 15–16 (emphasis in origi- nal). But the Court has plucked one arguably ambiguous statement from Ana L.’s questionnaire while ignoring others (described above) suggesting that she fundamen- tally opposed capital punishment. More importantly, the Court is not comparing apples with apples. Because Olanders D.’s questionnaire has been lost, there is no way to know the extent to which the views he expressed there were “unequivocal.” Consequently, in support of its con- tention that Olanders D. originally wrote that he was categorically opposed to the death penalty, the Court relies on his response to a question posed by the prosecu- Cite as: 576 U. S. (2015) 13 SOTOMAYOR, J., dissenting tion during voir dire. To be sure, when asked whether he had stated that he did not “believe in the death penalty” on his questionnaire, Olanders D. responded: “That’s correct.” App. 179. During voir dire, however, Ana L. described the position she had taken in her questionnaire in identical terms, stating: “I remember saying [on my questionnaire] that I didn’t believe in the death penalty.” Given the difficulty of differentiating between Ana L.’s and Olanders D.’s views toward the death penalty based on the record before us, the Court understandably does not press this factual point further. Instead, it commits a legal error by contending that the trial court’s determina- tion is entitled to deference because the judge—unlike this Court—had the benefit of observing both Olanders D.’s and the prosecution’s demeanor. Ante, at 16. Deference may be warranted when reviewing a substantive Batson claim. By suggesting that a trial judge can make a sound credibility determination without the benefit of an adver- sarial proceeding, however, the Court ignores the proce- dural nature of the constitutional error whose existence it purports to assume. Courts defer to credibility findings not only because of trial judges’ proximity to courtroom events, but also because of the expectations regarding the procedures used in the proceedings that they oversee. A decision to credit a prosecution’s race-neutral basis for striking a juror is entitled to great weight if that reason has “survive[d] the crucible of meaningful adversarial testing.” It warrants substan- tially less—if any—deference where, as here, it is made in the absence of the “fundamental instrument for judicial judgment: an adversary proceeding in which both parties may participate.” ; see also Kaley, 571 U. S., at (ROBERTS, C. J., dissenting) (slip op., at 16) (“It takes little imagination to see that ex parte 14 DAVIS v. AYALA SOTOMAYOR, J., dissenting proceedings create a heightened risk of error”).6 The Court’s analysis of the second reason put forward for striking Olanders D.—that his questionnaire was faulty— fares no better. As a preliminary matter, perhaps because Olanders D.’s questionnaire has been lost, the Court characterizes the prosecution’s second proffered reason for dismissing Olanders D. as an objection to all of his “responses” as opposed to simply the responses on his questionnaire. Ante, at 14. But even if the prosecution had relied on the rationale that the Court now substitutes, there is a real likelihood that the defense would still have been able to undermine its credibility. The Court asserts that Olanders D.’s “responses” were misleading because he had “unequivocally” stated that he did not believe in the death penalty on his questionnaire, but at voir dire he said that his views on capital punish- ment had changed over the previous 10 years. Ante, at 18. The Court’s argument thus hinges on the premise that Olanders D.’s questionnaire clearly stated that he was opposed to the death penalty. At least one person, how- ever, did not construe Olander D.’s questionnaire to express such a categorical view: defense counsel. During voir dire, one of Ayala’s lawyers remarked that she thought Olanders D.’s questionnaire “indicated that [he] had had some change in [his] feelings about the death penalty.” App. 176. “[M]y understanding,” she said, “is that at one time [he] felt one way, and—and then at some point [he] felt differently.” Thus, if (as the Court now hypothe- sizes) the trial court was inclined to accept the prosecu- tion’s second reason for striking Olanders D. based on apparent tension between his questionnaire and his —————— 6 None of the cases the Court cites are inconsistent with this logic. 552 U.S., at 474, and all concerned direct challenges to a trial court’s denial of a Batson motion as opposed to procedural Batson claims. Cite as: 576 U. S. (2015) 15 SOTOMAYOR, J., dissenting statements during voir dire (a proposition that is itself uncertain), the defense may have been able to argue per- suasively that any claimed inconsistency was illusory. * * * Batson recognized that it is fundamentally unfair to permit racial considerations to drive the use of peremptory challenges against jurors. When the prosecution strikes every potential black and Hispanic juror, a reviewing court has a responsibility to ensure that the trial court’s denial of the defendant’s Batson motion was not influ- enced by constitutional error. But there is neither a fac- tual nor a legal basis for the Court’s confidence that the prosecution’s race-neutral reasons for striking Olanders D. were unassailable. Because the Court overlooks that Ayala raised a procedural Batson claim, it scours the record for possible support for the trial court’s credibility determination without accounting for the flaws in the process that led to it. The proper inquiry is not whether the trial court’s determination can be sustained, but whether it may have been different had counsel been present. Given the strength of Ayala’s prima facie case and the arguments his counsel would have been able to make based even on the limited existing record, grave doubts exist as to whether counsel’s exclusion from Ayala’s Batson hearings was harmless. Accordingly, I respectfully dissent	1,875
per_curiam	per_curiam	true	Presley v. Georgia	2010-01-19	null	https://www.courtlistener.com/opinion/1746/presley-v-georgia/	https://www.courtlistener.com/api/rest/v3/clusters/1746/	2,010	2009-017	2	7	2	After a jury trial in the Superior Court of DeKalb County, Georgia, petitioner Eric Presley was convicted of a cocaine trafficking offense. The conviction was affirmed by the Supreme Court of Georgia. 285 Ga. 270, 674 S.E.2d 909 (2009). Presley seeks certiorari, claiming his Sixth and Fourteenth Amendment right to a public trial was violated when the trial court excluded the public from the voir dire of prospective jurors. The Supreme Court of Georgia's affirmance contravened this Court's clear precedents. Certiorari and petitioner's motion for leave to proceed in forma pauperis are now granted, and the judgment is reversed. Before selecting a jury in Presley's trial, the trial court noticed a lone courtroom observer. Id., at 270-271, 674 S.E.2d, at 910. The court explained that prospective jurors were about to enter and instructed the man that he was not allowed in the courtroom and had to leave that floor of the courthouse entirely. Id., at 271, 674 S.E.2d, at 910. The court then questioned the man and learned he was Presley's uncle. Ibid. The court reiterated its instruction: "`Well, you still can't sit out in the audience with the jurors. You know, most of the afternoon actually we're going to be picking a jury. And we may have a couple of pre-trial matters, so you're welcome to come in after we ... complete selecting the jury this afternoon. But, otherwise, you would have to leave the sixth floor, because jurors will be all out in the hallway in a few moments. That applies to everybody who's got a case.'" Ibid. Presley's counsel objected to "`the exclusion of the public from the courtroom,'" but the court explained, "`[t]here just isn't space for them to sit in the audience.'" Ibid. When Presley's counsel requested "`some accommodation,'" the court explained its ruling further: "`Well, the uncle can certainly come back in once the trial starts. There's no, really no need for the uncle to be present during jury selection.... [W]e have 42 jurors coming up. Each of those rows will be occupied by jurors. And his uncle cannot sit and intermingle with members of the jury panel. But, when the trial starts, the opening statements and other matters, he can certainly come back into the courtroom.'" Ibid. After Presley was convicted, he moved for a new trial based on the exclusion of the public from the juror voir dire. At a hearing on the motion, Presley presented evidence showing that 14 prospective jurors could have fit in the jury box and the remaining 28 could have fit entirely on one side of the courtroom, leaving adequate room for the public. App. to Pet. for Cert. E-37, E-41. The trial court denied the motion, commenting that it preferred to seat jurors throughout the entirety of the courtroom, and "it's up to the individual judge to decide ... what's comfortable." Id., E-38. The court continued: "It's totally up to my discretion whether or not I want family members in the courtroom to intermingle with the jurors and sit directly behind the jurors where they might overhear some inadvertent comment or conversation." Id., at E-42 to E-43. On appeal, the Court of Appeals of Georgia agreed, finding "[t]here was no abuse of discretion here, when the trial court explained the need to exclude spectators at the voir dire stage of the proceedings and when members of the public were invited to return 723 afterward." 290 Ga.App. 99, 100-101, 658 S.E.2d 773, 775 (2008). The Supreme Court of Georgia granted certiorari and affirmed, with two justices dissenting. After finding "the trial court certainly had an overriding interest in ensuring that potential jurors heard no inherently prejudicial remarks from observers during voir dire," the Supreme Court of Georgia rejected Presley's argument that the trial court was required to consider alternatives to closing the courtroom. 285 Ga., at 272, 273, 674 S.E.2d, at 911. It noted that "the United States Supreme Court [has] not provide[d] clear guidance regarding whether a court must, sua sponte, advance its own alternatives to [closure]," and the court ruled that "Presley was obliged to present the court with any alternatives that he wished the court to consider." Id., at 273, 674 S.E.2d, at 911, 912. When no alternatives are offered, it concluded, "there is no abuse of discretion in the court's failure to sua sponte advance its own alternatives." Id., at 274, 674 S.E.2d, at 912. This Court's rulings with respect to the public trial right rest upon two different provisions of the Bill of Rights, both applicable to the States via the Due Process Clause of the Fourteenth Amendment. The Sixth Amendment directs, in relevant part, that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial ...." The Court in In re Oliver, 333 U.S. 257, 273, 68 S. Ct. 499, 92 L. Ed. 682 (1948), made it clear that this right extends to the States. The Sixth Amendment right, as the quoted language makes explicit, is the right of the accused. The Court has further held that the public trial right extends beyond the accused and can be invoked under the First Amendment. Press-Enterprise Co. v. Superior Court of Cal., Riverside Cty., 464 U.S. 501, 104 S. Ct. 819, 78 L. Ed. 2d 629 (1984) (Press-Enterprise I). This requirement, too, is binding on the States. Ibid. The case now before the Court is brought under the Sixth Amendment, for it is the accused who invoked his right to a public trial. An initial question is whether the right to a public trial in criminal cases extends to the jury selection phase of trial, and in particular the voir dire of prospective jurors. In the First Amendment context that question was answered in Press-Enterprise I. Id., at 510, 104 S. Ct. 819. The Court there held that the voir dire of prospective jurors must be open to the public under the First Amendment. Later in the same Term as Press-Enterprise I, the Court considered a Sixth Amendment case concerning whether the public trial right extends to a pretrial hearing on a motion to suppress certain evidence. Waller v. Georgia, 467 U.S. 39, 104 S. Ct. 2210, 81 L. Ed. 2d 31 (1984). The Waller Court relied heavily upon Press-Enterprise I in finding that the Sixth Amendment right to a public trial extends beyond the actual proof at trial. It ruled that the pretrial suppression hearing must be open to the public because "there can be little doubt that the explicit Sixth Amendment right of the accused is no less protective of a public trial than the implicit First Amendment right of the press and public." 467 U.S., at 46, 104 S. Ct. 2210. While Press-Enterprise I was heavily relied upon in Waller, the jury selection issue in the former case was resolved under the First, not the Sixth, Amendment. Press-Enterprise I, supra, at 516, 104 S. Ct. 819 (STEVENS, J., concurring) ("The constitutional protection for the right of access that the Court upholds today is found in the First Amendment, rather than the public trial provision of the Sixth" (footnote omitted)). In the instant case, the question then arises whether it is so well settled that the Sixth Amendment 724 right extends to jury voir dire that this Court may proceed by summary disposition. The point is well settled under Press-Enterprise I and Waller. The extent to which the First and Sixth Amendment public trial rights are coextensive is an open question, and it is not necessary here to speculate whether or in what circumstances the reach or protections of one might be greater than the other. Still, there is no legitimate reason, at least in the context of juror selection proceedings, to give one who asserts a First Amendment privilege greater rights to insist on public proceedings than the accused has. "Our cases have uniformly recognized the public-trial guarantee as one created for the benefit of the defendant." Gannett Co. v. DePasquale, 443 U.S. 368, 380, 99 S. Ct. 2898, 61 L. Ed. 2d 608 (1979). There could be no explanation for barring the accused from raising a constitutional right that is unmistakably for his or her benefit. That rationale suffices to resolve the instant matter. The Supreme Court of Georgia was correct in assuming that the Sixth Amendment right to a public trial extends to the voir dire of prospective jurors. While the accused does have a right to insist that the voir dire of the jurors be public, there are exceptions to this general rule. "[T]he right to an open trial may give way in certain cases to other rights or interests, such as the defendant's right to a fair trial or the government's interest in inhibiting disclosure of sensitive information." Waller, 467 U.S., at 45, 104 S. Ct. 2210. "Such circumstances will be rare, however, and the balance of interests must be struck with special care." Ibid. Waller provided standards for courts to apply before excluding the public from any stage of a criminal trial: "[T]he party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure." Id., at 48, 104 S. Ct. 2210. In upholding exclusion of the public at juror voir dire in the instant case, the Supreme Court of Georgia concluded, despite our explicit statements to the contrary, that trial courts need not consider alternatives to closure absent an opposing party's proffer of some alternatives. While the Supreme Court of Georgia concluded this was an open question under this Court's precedents, the statement in Waller that "the trial court must consider reasonable alternatives to closing the proceeding" settles the point. Ibid. If that statement leaves any room for doubt, the Court was more explicit in Press-Enterprise I: "Even with findings adequate to support closure, the trial court's orders denying access to voir dire testimony failed to consider whether alternatives were available to protect the interests of the prospective jurors that the trial court's orders sought to guard. Absent consideration of alternatives to closure, the trial court could not constitutionally close the voir dire." 464 U.S., at 511, 104 S. Ct. 819. The conclusion that trial courts are required to consider alternatives to closure even when they are not offered by the parties is clear not only from this Court's precedents but also from the premise that "[t]he process of juror selection is itself a matter of importance, not simply to the adversaries but to the criminal justice system." Id., at 505, 104 S. Ct. 819. The public has a right to be present whether or not any party has asserted the *725 right. In Press-Enterprise I, for instance, neither the defendant nor the prosecution requested an open courtroom during juror voir dire proceedings; in fact, both specifically argued in favor of keeping the transcript of the proceedings confidential. Id., at 503-504, 104 S. Ct. 819. The Court, nonetheless, found it was error to close the courtroom. Id., at 513, 104 S. Ct. 819. Trial courts are obligated to take every reasonable measure to accommodate public attendance at criminal trials. Nothing in the record shows that the trial court could not have accommodated the public at Presley's trial. Without knowing the precise circumstances, some possibilities include reserving one or more rows for the public; dividing the jury venire panel to reduce courtroom congestion; or instructing prospective jurors not to engage or interact with audience members. Petitioner also argues that, apart from failing to consider alternatives to closure, the trial court erred because it did not even identify any overriding interest likely to be prejudiced absent the closure of voir dire. There is some merit to this complaint. The generic risk of jurors over-hearing prejudicial remarks, unsubstantiated by any specific threat or incident, is inherent whenever members of the public are present during the selection of jurors. If broad concerns of this sort were sufficient to override a defendant's constitutional right to a public trial, a court could exclude the public from jury selection almost as a matter of course. As noted in the dissent below, "the majority's reasoning permits the closure of voir dire in every criminal case conducted in this courtroom whenever the trial judge decides, for whatever reason, that he or she would prefer to fill the courtroom with potential jurors rather than spectators." 285 Ga., at 276, 674 S.E.2d, at 913 (opinion of Sears, C.J.). There are no doubt circumstances where a judge could conclude that threats of improper communications with jurors or safety concerns are concrete enough to warrant closing voir dire. But in those cases, the particular interest, and threat to that interest, must "be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered." Press-Enterprise I, supra, at 510, 104 S. Ct. 819; see also Press-Enterprise Co. v. Superior Court of Cal., County of Riverside, 478 U.S. 1, 15, 106 S. Ct. 2735, 92 L. Ed. 2d 1 (1986) ("The First Amendment right of access cannot be overcome by the conclusory assertion that publicity might deprive the defendant of [the right to a fair trial]"). We need not rule on this second claim of error, because even assuming, arguendo, that the trial court had an overriding interest in closing voir dire, it was still incumbent upon it to consider all reasonable alternatives to closure. It did not, and that is all this Court needs to decide. The Supreme Court of Georgia's judgment is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered.	After a jury trial in the Superior Court of DeKalb County, Georgia, petitioner Eric Presley was convicted of a cocaine trafficking offense. The conviction was affirmed by the Supreme Court of Georgia. Presley seeks certiorari, claiming his Sixth and Fourteenth Amendment right to a public trial was violated when the trial court excluded the public from the voir dire of prospective jurors. The Supreme Court of Georgia's affirmance contravened this Court's clear precedents. Certiorari and petitioner's motion for leave to proceed in forma pauperis are now granted, and the judgment is reversed. Before selecting a jury in Presley's trial, the trial court noticed a lone courtroom observer. The court explained that prospective jurors were about to enter and instructed the man that he was not allowed in the courtroom and had to leave that floor of the courthouse entirely. The court then questioned the man and learned he was Presley's uncle. The court reiterated its instruction: "`Well, you still can't sit out in the audience with the jurors. You know, most of the afternoon actually we're going to be picking a jury. And we may have a couple of pre-trial matters, so you're welcome to come in after we complete selecting the jury this afternoon. But, otherwise, you would have to leave the sixth floor, because jurors will be all out in the hallway in a few moments. That applies to everybody who's got a case.'" Presley's counsel objected to "`the exclusion of the public from the courtroom,'" but the court explained, "`[t]here just isn't space for them to sit in the audience.'" When Presley's counsel requested "`some accommodation,'" the court explained its ruling further: "`Well, the uncle can certainly come back in once the trial starts. There's no, really no need for the uncle to be present during jury selection. [W]e have 42 jurors coming up. Each of those rows will be occupied by jurors. And his uncle cannot sit and intermingle with members of the jury panel. But, when the trial starts, the opening statements and other matters, he can certainly come back into the '" After Presley was convicted, he moved for a new trial based on the exclusion of the public from the juror voir dire. At a hearing on the motion, Presley presented evidence showing that 14 prospective jurors could have fit in the jury box and the remaining 28 could have fit entirely on one side of the courtroom, leaving adequate room for the public. App. to Pet. for Cert. E-37, E-41. The trial court denied the motion, commenting that it preferred to seat jurors throughout the entirety of the courtroom, and "it's up to the individual judge to decide what's comfortable." E-38. The court continued: "t's totally up to my discretion whether or not want family members in the courtroom to intermingle with the jurors and sit directly behind the jurors where they might overhear some inadvertent comment or conversation." at E-42 to E-43. On appeal, the Court of Appeals of Georgia agreed, finding "[t]here was no abuse of discretion here, when the trial court explained the need to exclude spectators at the voir dire stage of the proceedings and when members of the public were invited to return 723 afterward." The Supreme Court of Georgia granted certiorari and affirmed, with two justices dissenting. After finding "the trial court certainly had an overriding interest in ensuring that potential jurors heard no inherently prejudicial remarks from observers during voir dire," the Supreme Court of Georgia rejected Presley's argument that the trial court was required to consider alternatives to closing the t noted that "the United States Supreme Court [has] not provide[d] clear guidance regarding whether a court must, sua sponte, advance its own alternatives to [closure]," and the court ruled that "Presley was obliged to present the court with any alternatives that he wished the court to consider." at 912. When no alternatives are offered, it concluded, "there is no abuse of discretion in the court's failure to sua sponte advance its own alternatives." This Court's rulings with respect to the public trial right rest upon two different provisions of the Bill of Rights, both applicable to the States via the Due Process Clause of the Fourteenth Amendment. The Sixth Amendment directs, in relevant part, that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial" The Court in n re Oliver, made it clear that this right extends to the States. The Sixth Amendment right, as the quoted language makes explicit, is the right of the accused. The Court has further held that the public trial right extends beyond the accused and can be invoked under the First Amendment. This requirement, too, is binding on the States. The case now before the Court is brought under the Sixth Amendment, for it is the accused who invoked his right to a public trial. An initial question is whether the right to a public trial in criminal cases extends to the jury selection phase of trial, and in particular the voir dire of prospective jurors. n the First Amendment context that question was answered in The Court there held that the voir dire of prospective jurors must be open to the public under the First Amendment. Later in the same Term as the Court considered a Sixth Amendment case concerning whether the public trial right extends to a pretrial hearing on a motion to suppress certain evidence. The Waller Court relied heavily upon in finding that the Sixth Amendment right to a public trial extends beyond the actual proof at trial. t ruled that the pretrial suppression hearing must be open to the public because "there can be little doubt that the explicit Sixth Amendment right of the accused is no less protective of a public trial than the implicit First Amendment right of the press and public." While was heavily relied upon in Waller, the jury selection issue in the former case was resolved under the First, not the Sixth, Amendment. (STEVENS, J., concurring) ("The constitutional protection for the right of access that the Court upholds today is found in the First Amendment, rather than the public trial provision of the Sixth" (footnote omitted)). n the instant case, the question then arises whether it is so well settled that the Sixth Amendment 724 right extends to jury voir dire that this Court may proceed by summary disposition. The point is well settled under and Waller. The extent to which the First and Sixth Amendment public trial rights are coextensive is an open question, and it is not necessary here to speculate whether or in what circumstances the reach or protections of one might be greater than the other. Still, there is no legitimate reason, at least in the context of juror selection proceedings, to give one who asserts a First Amendment privilege greater rights to insist on public proceedings than the accused has. "Our cases have uniformly recognized the public-trial guarantee as one created for the benefit of the defendant." Gannett There could be no explanation for barring the accused from raising a constitutional right that is unmistakably for his or her benefit. That rationale suffices to resolve the instant matter. The Supreme Court of Georgia was correct in assuming that the Sixth Amendment right to a public trial extends to the voir dire of prospective jurors. While the accused does have a right to insist that the voir dire of the jurors be public, there are exceptions to this general rule. "[T]he right to an open trial may give way in certain cases to other rights or interests, such as the defendant's right to a fair trial or the government's interest in inhibiting disclosure of sensitive information." Waller, "Such circumstances will be rare, however, and the balance of interests must be struck with special care." Waller provided standards for courts to apply before excluding the public from any stage of a criminal trial: "[T]he party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure." n upholding exclusion of the public at juror voir dire in the instant case, the Supreme Court of Georgia concluded, despite our explicit statements to the contrary, that trial courts need not consider alternatives to closure absent an opposing party's proffer of some alternatives. While the Supreme Court of Georgia concluded this was an open question under this Court's precedents, the statement in Waller that "the trial court must consider reasonable alternatives to closing the proceeding" settles the point. f that statement leaves any room for doubt, the Court was more explicit in : "Even with findings adequate to support closure, the trial court's orders denying access to voir dire testimony failed to consider whether alternatives were available to protect the interests of the prospective jurors that the trial court's orders sought to guard. Absent consideration of alternatives to closure, the trial court could not constitutionally close the voir dire." The conclusion that trial courts are required to consider alternatives to closure even when they are not offered by the parties is clear not only from this Court's precedents but also from the premise that "[t]he process of juror selection is itself a matter of importance, not simply to the adversaries but to the criminal justice system." The public has a right to be present whether or not any party has asserted the *725 right. n for instance, neither the defendant nor the prosecution requested an open courtroom during juror voir dire proceedings; in fact, both specifically argued in favor of keeping the transcript of the proceedings confidential. The Court, nonetheless, found it was error to close the Trial courts are obligated to take every reasonable measure to accommodate public attendance at criminal trials. Nothing in the record shows that the trial court could not have accommodated the public at Presley's trial. Without knowing the precise circumstances, some possibilities include reserving one or more rows for the public; dividing the jury venire panel to reduce courtroom congestion; or instructing prospective jurors not to engage or interact with audience members. Petitioner also argues that, apart from failing to consider alternatives to closure, the trial court erred because it did not even identify any overriding interest likely to be prejudiced absent the closure of voir dire. There is some merit to this complaint. The generic risk of jurors over-hearing prejudicial remarks, unsubstantiated by any specific threat or incident, is inherent whenever members of the public are present during the selection of jurors. f broad concerns of this sort were sufficient to override a defendant's constitutional right to a public trial, a court could exclude the public from jury selection almost as a matter of course. As noted in the dissent below, "the majority's reasoning permits the closure of voir dire in every criminal case conducted in this courtroom whenever the trial judge decides, for whatever reason, that he or she would prefer to fill the courtroom with potential jurors rather than spectators." There are no doubt circumstances where a judge could conclude that threats of improper communications with jurors or safety concerns are concrete enough to warrant closing voir dire. But in those cases, the particular interest, and threat to that interest, must "be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered." ; see also 106 S. Ct. 5, We need not rule on this second claim of error, because even assuming, arguendo, that the trial court had an overriding interest in closing voir dire, it was still incumbent upon it to consider all reasonable alternatives to closure. t did not, and that is all this Court needs to decide. The Supreme Court of Georgia's judgment is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. t is so ordered.	1,880
Justice Thomas	dissenting	true	Presley v. Georgia	2010-01-19	null	https://www.courtlistener.com/opinion/1746/presley-v-georgia/	https://www.courtlistener.com/api/rest/v3/clusters/1746/	2,010	2009-017	2	7	2	Today the Court summarily disposes of two important questions it left unanswered 25 years ago in Waller v. Georgia, 467 U.S. 39, 104 S. Ct. 2210, 81 L. Ed. 2d 31 (1984), and Press-Enterprise Co. v. Superior Court of Cal., Riverside Cty., 464 U.S. 501, 104 S. Ct. 819, 78 L. Ed. 2d 629 (1984) (Press-Enterprise I). I respectfully dissent from the Court's summary disposition of these important questions. 726 First, the Court addresses "whether it is so well settled that [a defendant's] Sixth Amendment right" to a public trial "extends to jury voir dire that this Court may proceed by summary disposition." Ante, at 723-724. The Court's affirmative answer to this question relies exclusively on Waller and Press-Enterprise I; but those cases cannot bear the weight of this answer. The Court correctly notes that Waller answers whether a "defendant's Sixth Amendment right to a public trial applies to a suppression hearing" (not to jury voir dire), 467 U.S., at 43, 104 S. Ct. 2210, and that Press-Enterprise I interprets the public's First Amendment right to attend jury voir dire, 464 U.S., at 509, n. 8, 104 S. Ct. 819, so neither Waller nor Press-Enterprise I expressly answers the question here, see ante, at 723-724. That acknowledgment should have eliminated any basis for disposing of this case summarily; the Court should reserve that procedural option for cases that our precedents govern squarely and directly. See, e.g., United States v. Haley, 358 U.S. 644, 79 S. Ct. 537, 3 L. Ed. 2d 567 (1959) (per curiam) (summarily reversing a federal court's judgment that refused to follow, or even mention, one of our precedents upholding the statute in issue under identical circumstances). The Court nevertheless concludes that Waller and Press-Enterprise Iin combination"well settl[e]" the "point." Ante, at 724. It admits that "[t]he extent to which the First and Sixth Amendment public trial rights are coextensive is an open question," but, apparently extrapolating from Press-Enterprise I, asserts that "there is no legitimate reason, at least in the context of juror selection proceedings, to give one who asserts a First Amendment privilege greater rights to insist on public proceedings than the accused has." Ante, at 724. But this conclusion decides by implication an unstated premise: that jury voir dire is part of the "public trial" that the Sixth Amendment guarantees. As Justice STEVENS recognized in Press-Enterprise I, that case did not decide this issue. See 464 U.S., at 516, 104 S. Ct. 819 (concurring opinion) ("If the defendant had advanced a claim that his Sixth Amendment right to a public trial was violated by the closure of the voir dire, it would be important to determine whether the selection of the jury was a part of the `trial' within the meaning of that Amendment"). Until today, that question remained open; the majority certainly cites no other case from this Court answering it. Yet the Court does so hereeven though the Supreme Court of Georgia did not meaningfully consider that question, and petitioner does not ask us to do so.[] I am unwilling to decide this important question summarily without the benefit of full briefing and argument. Second, I am also unwilling to join the Court in reading the "`alternatives to closure'" language it quotes from Waller and Press Enterprise I as squarely foreclosing *727 the decision of the Supreme Court of Georgia. See ante, at 724-725. The Court chides the Supreme Court of Georgia for "conclud[ing], despite our explicit statements to the contrary, that trial courts need not consider alternatives to closure absent an opposing party's proffer of some alternatives." Ante, at 724 (emphasis added). But neither Waller nor Press-Enterprise I expressly holds that jury voir dire is covered by the Sixth Amendment's "[P]ublic [T]rial" Clause. Accordingly, it is not obvious that the "alternatives to closure" language in those opinions governs this case. Even assuming the Court correctly extends Waller and Press-Enterprise I to this (Sixth Amendment voir dire) context, neither opinion "explicit[ly]" places on trial courts the burden of sua sponte suggesting alternatives to closure "absent an opposing party's proffer of some alternatives." Ante, at 724. The statement that a "`trial court must consider reasonable alternatives to closing the proceeding,'" ibid. (quoting Waller, supra, at 48, 104 S. Ct. 2210), does not definitively establish who must suggest alternatives to closure that the trial court must then consider, nor does it expressly address whether the trial court must suggest such alternatives in the absence of a proffer. I concede that the language can easily be read to imply the latter, and the Court may well be right that a trial court violates the Sixth Amendment if it closes the courtroom without sua sponte considering reasonable alternatives to closure. But I would not decide the issue summarily, and certainly would not declare, as the Court does, that Waller and Press-Enterprise I "settl[e] the point" without "leav[ing] any room for doubt." Ante, at 724. Besides departing from the standards that should govern summary dispositions, today's decision belittles the efforts of our judicial colleagues who have struggled with these issues in attempting to interpret and apply the same opinions upon which the Court so confidently relies today. See, e.g., Ayala v. Speckard, 131 F.3d 62, 70-72 (C.A.2 1997) (en banc), cert. denied, 524 U.S. 958, 118 S. Ct. 2380, 141 L. Ed. 2d 747 (1998); 131 F.3d, at 74-75 (Walker, J., concurring); id., at 77-80 (Parker, J., dissenting). The Court's decision will also surely surprise petitioner, who did not seek summary reversal based on the allegedly incorrect application of this Court's well-established precedents by the Supreme Court of Georgia, but instead asked us to "resolve this split of authority" over whether "the opponent of closure must suggest alternatives to closure" or whether "those seeking to exclude the public must show that there is no available less-intrusive alternative." Pet. for Cert. 18.	Today the Court summarily disposes of two important questions it left unanswered 25 years ago in and Press-Enterprise I respectfully dissent from the Court's summary disposition of these important questions. 726 First, the Court addresses "whether it is so well settled that [a defendant's] Sixth Amendment right" to a public trial "extends to jury voir that this Court may proceed by summary disposition." Ante, at 723-724. The Court's affirmative answer to this question relies exclusively on and Press-Enterprise I; but those cases cannot bear the weight of this answer. The Court correctly notes that answers whether a "defendant's Sixth Amendment right to a public trial applies to a suppression hearing" (not to jury voir ), and that Press-Enterprise I interprets the public's First Amendment right to attend jury voir n. 8, so neither nor Press-Enterprise I expressly answers the question here, see ante, at 723-724. That acknowledgment should have eliminated any basis for disposing of this case summarily; the Court should reserve that procedural option for cases that our precedents govern squarely and ctly. See, e.g., United (summarily reversing a federal court's judgment that refused to follow, or even mention, one of our precedents upholding the statute in issue under identical circumstances). The Court nevertheless concludes that and Press-Enterprise Iin combination"well settl[e]" the "point." Ante, at 724. It admits that "[t]he extent to which the First and Sixth Amendment public trial rights are coextensive is an open question," but, apparently extrapolating from Press-Enterprise I, asserts that "there is no legitimate reason, at least in the context of juror selection proceedings, to give one who asserts a First Amendment privilege greater rights to insist on public proceedings than the accused has." Ante, at 724. But this conclusion decides by implication an unstated premise: that jury voir is part of the "public trial" that the Sixth Amendment guarantees. As Justice STEVENS recognized in Press-Enterprise I, that case did not decide this issue. See (concurring opinion) ("If the defendant had advanced a claim that his Sixth Amendment right to a public trial was violated by the closure of the voir it would be important to determine whether the selection of the jury was a part of the `trial' within the meaning of that Amendment"). Until today, that question remained open; the majority certainly cites no other case from this Court answering it. Yet the Court does so hereeven though the Supreme Court of Georgia did not meaningfully consider that question, and petitioner does not ask us to do so.[] I am unwilling to decide this important question summarily without the benefit of full briefing and argument. Second, I am also unwilling to join the Court in reading the "`alternatives to closure'" language it quotes from and Press Enterprise I as squarely foreclosing *727 the decision of the Supreme Court of Georgia. See ante, at 724-725. The Court chides the Supreme Court of Georgia for "conclud[ing], despite our explicit statements to the contrary, that trial courts need not consider alternatives to closure absent an opposing party's proffer of some alternatives." Ante, at 724 (emphasis added). But neither nor Press-Enterprise I expressly holds that jury voir is covered by the Sixth Amendment's "[P]ublic [T]rial" Clause. Accordingly, it is not obvious that the "alternatives to closure" language in those opinions governs this case. Even assuming the Court correctly extends and Press-Enterprise I to this (Sixth Amendment voir ) context, neither opinion "explicit[ly]" places on trial courts the burden of sua sponte suggesting alternatives to closure "absent an opposing party's proffer of some alternatives." Ante, at 724. The statement that a "`trial court must consider reasonable alternatives to closing the proceeding,'" (quoting ), does not definitively establish who must suggest alternatives to closure that the trial court must then consider, nor does it expressly address whether the trial court must suggest such alternatives in the absence of a proffer. I concede that the language can easily be read to imply the latter, and the Court may well be right that a trial court violates the Sixth Amendment if it closes the courtroom without sua sponte considering reasonable alternatives to closure. But I would not decide the issue summarily, and certainly would not declare, as the Court does, that and Press-Enterprise I "settl[e] the point" without "leav[ing] any room for doubt." Ante, at 724. Besides departing from the standards that should govern summary dispositions, today's decision belittles the efforts of our judicial colleagues who have struggled with these issues in attempting to interpret and apply the same opinions upon which the Court so confidently relies today. See, e.g., cert. denied, ; -75 ; The Court's decision will also surely surprise petitioner, who did not seek summary reversal based on the allegedly incorrect application of this Court's well-established precedents by the Supreme Court of Georgia, but instead asked us to "resolve this split of authority" over whether "the opponent of closure must suggest alternatives to closure" or whether "those seeking to exclude the public must show that there is no available less-intrusive alternative." Pet. for Cert. 18.	1,881
Justice Ginsburg	majority	false	Mlb v. Slj	1996-12-16	null	https://www.courtlistener.com/opinion/118071/mlb-v-slj/	https://www.courtlistener.com/api/rest/v3/clusters/118071/	1,996	1996-010	2	6	3	By order of a Mississippi Chancery Court, petitioner M. L. B.'s parental rights to her two minor children were forever terminated. M. L. B. sought to appeal from the termination decree, but Mississippi required that she pay in advance record preparation fees estimated at $2,352.36. Because M. L. B. lacked funds to pay the fees, her appeal was dismissed. Urging that the size of her pocketbook should not be dispositive when "an interest far more precious than any property right" is at stake, Santosky v. Kramer, 455 U.S. 745, 107 758-759 (1982), M. L. B. tenders this question, which we agreed to hear and decide: May a State, consistent with the Due Process and Equal Protection Clauses of the Fourteenth Amendment, condition appeals from trial court decrees terminating parental rights on the affected parent's ability to pay record preparation fees? We hold that, just as a State may not block an indigent petty offender's access to an appeal afforded others, see Mayer v. Chicago, 404 U.S. 189, 195-196 (1971), so Mississippi may not deny M. L. B., because of her poverty, appellate review of the sufficiency of the evidence on which the trial court found her unfit to remain a parent. I Petitioner M. L. B. and respondent S. L. J. are, respectively, the biological mother and father of two children, a boy born in April 1985, and a girl born in February 1987. In June 1992, after a marriage that endured nearly eight years, M. L. B. and S. L. J. were divorced. The children remained in their father's custody, as M. L. B. and S. L. J. had agreed at the time of the divorce. S. L. J. married respondent J. P. J. in September 1992. In November of the following year, S. L. J. and J. P. J. filed suit in Chancery Court in Mississippi, seeking to terminate the parental rights of M. L. B. and to gain court approval for adoption of the children by their stepmother, J. P. J. The complaint alleged that M. L. B. had not maintained reasonable visitation and was in arrears on child support payments. M. L. B. counterclaimed, seeking primary custody of both children and contending that S. L. J. had not permitted her reasonable visitation, despite a provision in the divorce decree that he do so. After taking evidence on August 18, November 2, and December 12, 1994, the Chancellor, in a decree filed December 14, 1994, terminated all parental rights of the natural mother, approved the adoption, and ordered that J. P. J., the adopting parent, be shown as the mother of the children on 108 their birth certificates. Twice reciting a segment of the governing Mississippi statute, Miss. Code Ann. § 93-15 103(3)(e) (1994), the Chancellor declared that there had been a "substantial erosion of the relationship between the natural mother, [M. L. B.], and the minor children," which had been caused "at least in part by [M. L. B.'s] serious neglect, abuse, prolonged and unreasonable absence or unreasonable failure to visit or communicate with her minor children." App. to Pet. for Cert. 9, 10.[1] The Chancellor stated, without elaboration, that the natural father and his second wife had met their burden of proof by "clear and convincing evidence." Id., at 10. Nothing in the Chancellor's order describes the evidence, however, or otherwise reveals precisely why M. L. B. was decreed, forevermore, a stranger to her children. In January 1995, M. L. B. filed a timely appeal and paid the $100 filing fee. The Clerk of the Chancery Court, several days later, estimated the costs for preparing and transmitting the record: $1,900 for the transcript (950 pages at $2 per page); $438 for other documents in the record (219 pages at $2 per page); $4.36 for binders; and $10 for mailing. Id., at 15. Mississippi grants civil litigants a right to appeal, but conditions that right on prepayment of costs. Miss. Code Ann. §§ 11-51-3, 11-51-29 (Supp. 1996). Relevant portions of a transcript must be ordered, and its preparation costs advanced 109 by the appellant, if the appellant "intends to urge on appeal," as M. L. B. did, "that a finding or conclusion is unsupported by the evidence or is contrary to the evidence." Miss. Rule of App. Proc. 10(b)(2) (1995); see also Miss. Code Ann. § 11-51-29 (Supp. 1996). Unable to pay $2,352.36, M. L. B. sought leave to appeal in forma pauperis. The Supreme Court of Mississippi denied her application in August 1995. Under its precedent, the court said, "[t]he right to proceed in forma pauperis in civil cases exists only at the trial level." App. to Pet. for Cert. 3.[2] M. L. B. had urged in Chancery Court and in the Supreme Court of Mississippi, and now urges in this Court, that "where the State's judicial processes are invoked to secure so severe an alteration of a litigant's fundamental rightsthe termination of the parental relationship with one's natural childbasic notions of fairness [and] of equal protection under the law, . . . guaranteed by [the Mississippi and Federal Constitutions], require that a person be afforded the right of appellate review though one is unable to pay the costs of such review in advance." Id., at 18.[3] 110 II Courts have confronted, in diverse settings, the "age-old problem" of "[p]roviding equal justice for poor and rich, weak and powerful alike." Griffin v. Illinois, 351 U.S. 12, 16 (1956). Concerning access to appeal in general, and transcripts needed to pursue appeals in particular, Griffin is the foundation case. Griffin involved an Illinois rule that effectively conditioned thoroughgoing appeals from criminal convictions on the defendant's procurement of a transcript of trial proceedings. See id. , at 13-14, and nn. 2, 3 (noting, inter alia, that "mandatory record," which an indigent defendant could obtain free of charge, did not afford the defendant an opportunity to seek review of trial errors). Indigent defendants, other than those sentenced to death, were not excepted from the rule, so in most cases, defendants without means to pay for a transcript had no access to appellate review at all. Although the Federal Constitution guarantees no right to appellate review, id. , at 18, once a State affords that right, Griffin held, the State may not "bolt the door to equal justice," id. , at 24 (Frankfurter, J., concurring in judgment). The plurality in Griffin recognized "the importance of appellate review to a correct adjudication of guilt or innocence." Id. , at 18. "[T]o deny adequate review to the poor," the plurality observed, "means that many of them may lose their life, liberty or property because of unjust convictions which appellate courts would set aside." Id. , at 19. Judging the Illinois rule inconsonant with the Fourteenth Amendment, the Griffin plurality drew support from the Due Process and Equal Protection Clauses. Id. , at 13, 18. Justice Frankfurter, concurring in the judgment in Griffin, emphasized and explained the decision's equal protection underpinning: "Of course a State need not equalize economic conditions. . . . But when a State deems it wise and just that 111 convictions be susceptible to review by an appellate court, it cannot by force of its exactions draw a line which precludes convicted indigent persons, forsooth erroneously convicted, from securing such a review . . . ." Id., at 23. See also Ross v. Moffitt, 417 U.S. 600, 607 (1974) (Griffin and succeeding decisions "stand for the proposition that a State cannot arbitrarily cut off appeal rights for indigents while leaving open avenues of appeal for more affluent persons."). Summarizing the Griffin line of decisions regarding an indigent defendant's access to appellate review of a conviction,[4] we said in Rinaldi v. Yeager, 384 U.S. 305, 310 (1966): "This Court has never held that the States are required to establish avenues of appellate review, but it is now fundamental that, once established, these avenues must be kept free of unreasoned distinctions that can only impede open and equal access to the courts." Of prime relevance to the question presented by M. L. B.'s petition, Griffin `s principle has not been confined to cases in which imprisonment is at stake. The key case is Mayer v. Chicago, 404 U.S. 189 (1971). Mayer involved an indigent defendant convicted on nonfelony charges of violating two city ordinances. Fined $250 for each offense, the defendant petitioned for a transcript to support his appeal. He alleged prosecutorial misconduct and insufficient evidence to convict. The State provided free transcripts for indigent appellants 112 in felony cases only. We declined to limit Griffin to cases in which the defendant faced incarceration. "The invidiousness of the discrimination that exists when criminal procedures are made available only to those who can pay," the Court said in Mayer, "is not erased by any differences in the sentences that may be imposed." 404 U.S., at 197. Petty offenses could entail serious collateral consequences, the Mayer Court noted. Ibid. The Griffin principle, Mayer underscored, "is a flat prohibition," 404 U.S., at 196, against "making access to appellate processes from even [the State's] most inferior courts depend upon the [convicted] defendant's ability to pay," id. , at 197. An impecunious party, the Court ruled, whether found guilty of a felony or conduct only "quasi criminal in nature," id. , at 196, "cannot be denied a record of sufficient completeness to permit proper [appellate] consideration of his claims," id. , at 198 (internal quotation marks omitted).[5] In contrast to the "flat prohibition" of "bolted doors" that the Griffin line of cases securely established, the right to 113 counsel at state expense, as delineated in our decisions, is less encompassing. A State must provide trial counsel for an indigent defendant charged with a felony, Gideon v. Wainwright, 372 U.S. 335, 339 (1963), but that right does not extend to nonfelony trials if no term of imprisonment is actually imposed, Scott v. Illinois, 440 U.S. 367, 373-374 (1979). A State's obligation to provide appellate counsel to poor defendants faced with incarceration applies to appeals of right. Douglas v. California, 372 U.S. 353, 357 (1963). In Ross v. Moffitt, however, we held that neither the Due Process Clause nor the Equal Protection Clause requires a State to provide counsel at state expense to an indigent prisoner pursuing a discretionary appeal in the state system or petitioning for review in this Court. 417 U.S., at 610, 612, 616-618. III We have also recognized a narrow category of civil cases in which the State must provide access to its judicial processes without regard to a party's ability to pay court fees. In Boddie v. Connecticut, 401 U.S. 371 (1971), we held that the State could not deny a divorce to a married couple based on their inability to pay approximately $60 in court costs. Crucial to our decision in Boddie was the fundamental interest at stake. "[G]iven the basic position of the marriage relationship in this society's hierarchy of values and the concomitant state monopolization of the means for legally dissolving this relationship," we said, due process "prohibit[s] a State from denying, solely because of inability to pay, access to its courts to individuals who seek judicial dissolution of their marriages." Id., at 374; see also Little v. Streater, 452 U.S. 1, 13-17 (1981) (State must pay for blood grouping tests sought by an indigent defendant to enable him to contest a paternity suit). Soon after Boddie, in Lindsey v. Normet, 405 U.S. 56 (1972), the Court confronted a double-bond requirement imposed by Oregon law only on tenants seeking to appeal adverse 114 decisions in eviction actions. We referred first to precedent recognizing that, "if a full and fair trial on the merits is provided, the Due Process Clause of the Fourteenth Amendment does not require a State to provide appellate review." Id., at 77. We next stated, however, that "[w]hen an appeal is afforded, . . . it cannot be granted to some litigants and capriciously or arbitrarily denied to others without violating the Equal Protection Clause." Ibid. Oregon's double-bond requirement failed equal protection measurement, we concluded, because it raised a substantial barrier to appeal for a particular class of litigantstenants facing evictiona barrier "faced by no other civil litigant in Oregon." Id. , at 79. The Court pointed out in Lindsey that the classification there at issue disadvantaged nonindigent as well as indigent appellants, ibid.; the Lindsey decision, therefore, does not guide our inquiry here. The following year, in United States v. Kras, 409 U.S. 434 (1973), the Court clarified that a constitutional requirement to waive court fees in civil cases is the exception, not the general rule. Kras concerned fees, totaling $50, required to secure a discharge in bankruptcy. Id. , at 436. The Court recalled in Kras that "[o]n many occasions we have recognized the fundamental importance . . . under our Constitution" of "the associational interests that surround the establishment and dissolution of th[e] [marital] relationship." Id., at 444.[6] But bankruptcy discharge entails no "fundamental 115 interest," we said. Id., at 445. Although "obtaining [a] desired new start in life [is] important," that interest, the Court explained, "does not rise to the same constitutional level" as the interest in establishing or dissolving a marriage. Ibid.[7] Nor is resort to court the sole path to securing debt forgiveness, we stressed; in contrast, termination of a marriage, we reiterated, requires access to the State's judicial machinery. Id., at 445-446; see Boddie, 401 U. S., at 376. In Ortwein v. Schwab, 410 U.S. 656 (1973) (per curiam), the Court adhered to the line drawn in Kras. The appellants in Ortwein sought court review of agency determinations reducing their welfare benefits. Alleging poverty, they challenged, as applied to them, an Oregon statute requiring appellants in civil cases to pay a $25 fee. We summarily affirmed the Oregon Supreme Court's judgment rejecting appellants' challenge. As in Kras, the Court saw no "`fundamental interest .. . gained or lost depending on the availability' of the relief sought by [the complainants]." 410 U.S., at 659 (quoting Kras, 409 U. S., at 445). Absent a fundamental interest or classification attracting heightened scrutiny, we said, the applicable equal protection standard 116 "is that of rational justification," a requirement we found satisfied by Oregon's need for revenue to offset the expenses of its court system. 410 U.S., at 660. We expressly rejected the Ortwein appellants' argument that a fee waiver was required for all civil appeals simply because the State chose to permit in forma pauperis filings in special classes of civil appeals, including appeals from terminations of parental rights. Id. , at 661. In sum, as Ortwein underscored, this Court has not extended Griffin to the broad array of civil cases. But tellingly, the Court has consistently set apart from the mine run of cases those involving state controls or intrusions on family relationships. In that domain, to guard against undue official intrusion, the Court has examined closely and contextually the importance of the governmental interest advanced in defense of the intrusion. Cf. Moore v. East Cleveland, 431 U.S. 494 (1977). IV Choices about marriage, family life, and the upbringing of children are among associational rights this Court has ranked as "of basic importance in our society," Boddie, 401 U. S., at 376, rights sheltered by the Fourteenth Amendment against the State's unwarranted usurpation, disregard, or disrespect. See, for example, Turner v. Safley, 482 U.S. 78 (1987), Zablocki v. Redhail, 434 U.S. 374 (1978), and Loving v. Virginia, 388 U.S. 1 (1967) (marriage); Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942) (procreation); Pierce v. Society of Sisters, 268 U.S. 510 (1925), and Meyer v. Nebraska, 262 U.S. 390 (1923) (raising children). M. L. B.'s case, involving the State's authority to sever permanently a parent-child bond,[8] demands the close consideration 117 the Court has long required when a family association so undeniably important is at stake. We approach M. L. B.'s petition mindful of the gravity of the sanction imposed on her and in light of two prior decisions most immediately in point: Lassiter v. Department of Social Servs. of Durham Cty., 452 U.S. 18 (1981), and Santosky v. Kramer, 455 U.S. 745 (1982). Lassiter concerned the appointment of counsel for indigent persons seeking to defend against the State's termination of their parental status. The Court held that appointed counsel was not routinely required to assure a fair adjudication; instead, a case-by-case determination of the need for counsel would suffice, an assessment to be made "in the first instance by the trial court, subject . . . to appellate review." 452 U.S., at 32. For probation-revocation hearings where loss of conditional liberty is at issue, the Lassiter Court observed, our precedent is not doctrinaire; due process is provided, we have held, when the decision whether counsel should be appointed is made on a case-by-case basis. See Gagnon v. Scarpelli, 411 U.S. 778, 790 (1973). In criminal prosecutions that do not lead to the defendant's incarceration, however, our precedent recognizes no right to appointed counsel. See Scott v. Illinois, 440 U. S., at 373-374. Parental termination cases, the Lassiter Court concluded, are most appropriately ranked with probation-revocation hearings: While the Court declined to recognize an automatic right to appointed counsel, it said that an appointment would be due when warranted by the character and difficulty of the case. See Lassiter, 452 U. S., at 31-32.[9] Significant to the disposition of M. L. B.'s case, the Lassiter Court considered it "plain . . . that a parent's desire for 118 and right to `the companionship, care, custody, and management of his or her children' is an important interest," one that "`undeniably warrants deference and, absent a powerful countervailing interest, protection.' " Id., at 27 (quoting Stanley v. Illinois, 405 U.S. 645, 651 (1972)). The object of the proceeding is "not simply to infringe upon [the parent's] interest," the Court recognized, "but to end it"; thus, a decision against the parent "work[s] a unique kind of deprivation." Lassiter, 452 U. S., at 27. For that reason, "[a] parent's interest in the accuracy and justice of the decision . . . is . . . a commanding one." Ibid.; see also id., at 39 (Blackmun, J., dissenting) ("A termination of parental rights is both total and irrevocable. Unlike other custody proceedings, it leaves the parent with no right to visit or communicate with the child . . . ." (footnote omitted)). Santosky held that a "clear and convincing" proof standard is constitutionally required in parental termination proceedings. 455 U.S., at 769-770.[10] In so ruling, the Court again emphasized that a termination decree is "final and irrevocable." Id., at 759 (emphasis in original). "Few forms of state action," the Court said, "are both so severe and so irreversible." Ibid.[11] As in Lassiter, the Court characterized the parent's interest as "commanding," indeed, 119 "far more precious than any property right." 455 U.S., at 758-759. Although both Lassiter and Santosky yielded divided opinions, the Court was unanimously of the view that "the interest of parents in their relationship with their children is sufficiently fundamental to come within the finite class of liberty interests protected by the Fourteenth Amendment." 455 U.S., at 774 (Rehnquist, J., dissenting). It was also the Court's unanimous view that "[f]ew consequences of judicial action are so grave as the severance of natural family ties." Id., at 787. V Guided by this Court's precedent on an indigent's access to judicial processes in criminal and civil cases, and on proceedings to terminate parental status, we turn to the classification question this case presents: Does the Fourteenth Amendment require Mississippi to accord M. L. B. access to an appealavailable but for her inability to advance required costsbefore she is forever branded unfit for affiliation with her children? Respondents urge us to classify M. L. B.'s case with the generality of civil cases, in which indigent persons have no constitutional right to proceed in forma pauperis. See supra, at 114-116. M. L. B., on the other hand, maintains that the accusatory state action she is trying to fend off[12] is barely distinguishable from criminal condemnation in view of the magnitude and permanence of the loss she faces. Cf. In re Gault, 387 U.S. 1, 50, 55 (1967) (resisting "feeble enticement of the `civil' label-of-convenience," and holding that Fifth Amendment's safeguard against self-incrimination applies in juvenile proceedings). See also Santosky, 455 U. S., at 756, 760 (recognizing stigmatic effect of parental status termination decree: "[I]t entails a judicial determination that [a parent is] unfit to raise [her] own children."). For the purpose at hand, M. L. B. 120 asks us to treat her parental termination appeal as we have treated petty offense appeals; she urges us to adhere to the reasoning in Mayer v. Chicago, 404 U.S. 189 (1971), see supra, at 111-112, and rule that Mississippi may not withhold the transcript M. L. B. needs to gain review of the order ending her parental status. Guided by Lassiter and Santosky, and other decisions acknowledging the primacy of the parent-child relationship, e. g., Stanley v. Illinois, 405 U. S., at 651; Meyer v.Nebraska, 262 U. S., at 399, we agree that the Mayer decision points to the disposition proper in this case. We observe first that the Court's decisions concerning access to judicial processes, commencing with Griffin and running through Mayer, reflect both equal protection and due process concerns. See Ross v. Moffitt, 417 U. S., at 608-609. As we said in Bearden v. Georgia, 461 U.S. 660, 665 (1983), in the Court's Griffin -line cases, "[d]ue process and equal protection principles converge." The equal protection concern relates to the legitimacy of fencing out would-be appellants based solely on their inability to pay core costs. See Griffin, 351 U. S., at 23 (Frankfurter, J., concurring in judgment) (cited supra, at 110-111). The due process concern homes in on the essential fairness of the state-ordered proceedings anterior to adverse state action. See Ross, 417 U. S., at 609. A "precise rationale" has not been composed, id. , at 608, because cases of this order "cannot be resolved by resort to easy slogans or pigeonhole analysis," Bearden, 461 U. S., at 666. Nevertheless, "[m]ost decisions in this area," we have recognized, "res[t] on an equal protection framework," id., at 665, as M. L. B.'s plea heavily does, for, as we earlier observed, see supra, at 110, due process does not independently require that the State provide a right to appeal. We place this case within the framework established by our past decisions in this area. In line with those decisions, we inspect the character and intensity of the individual interest at stake, on the one hand, and the State's 121 justification for its exaction, on the other. See Bearden, 461 U. S., at 666-667. We now focus on Mayer and the considerations linking that decision to M. L. B.'s case. Mayer, described supra, at 111-112, applied Griffin to a petty offender, fined a total of $500, who sought to appeal from the trial court's judgment. See Mayer, 404 U. S., at 190. An "impecunious medical student," id., at 197, the defendant in Mayer could not pay for a transcript. We held that the State must afford him a record complete enough to allow fair appellate consideration of his claims. The defendant in Mayer faced no term of confinement, but the conviction, we observed, could affect his professional prospects and, possibly, even bar him from the practice of medicine. Ibid. The State's pocketbook interest in advance payment for a transcript, we concluded, was unimpressive when measured against the stakes for the defendant. Ibid. Similarly here, the stakes for petitioner M. L. B.forced dissolution of her parental rightsare large, "`more substantial than mere loss of money.' " Santosky, 455 U. S., at 756 (quoting Addington v. Texas, 441 U.S. 418, 424 (1979)). In contrast to loss of custody, which does not sever the parentchild bond, parental status termination is "irretrievabl[y] destructi[ve]" of the most fundamental family relationship. Santosky, 455 U. S., at 753. And the risk of error, Mississippi's experience shows, is considerable. See supra, at 109, n. 3. Consistent with Santosky, Mississippi has, by statute, adopted a "clear and convincing proof" standard for parental status termination cases. Miss. Code Ann. § 93-15-109 (Supp. 1996). Nevertheless, the Chancellor's termination order in this case simply recites statutory language; it describes no evidence, and otherwise details no reasons for finding M. L. B. "clear[ly] and convincing[ly]" unfit to be a parent. See supra, at 107-108. Only a transcript can reveal to judicial minds other than the Chancellor's the sufficiency, 122 or insufficiency, of the evidence to support his stern judgment. The countervailing government interest, as in Mayer, is financial. Mississippi urges, as the justification for its appeal cost prepayment requirement, the State's legitimate interest in offsetting the costs of its court system. Brief for Respondents 4, 8, n. 1, 27-30. But in the tightly circumscribed category of parental status termination cases, cf. supra, at 118, n. 11, appeals are few, and not likely to impose an undue burden on the State. See Brief for Petitioner 20, 25 (observing that only 16 reported appeals in Mississippi from 1980 until 1996 referred to the State's termination statute, and only 12 of those decisions addressed the merits of the grant or denial of parental rights); cf. Brief for Respondents 28 (of 63,765 civil actions filed in Mississippi Chancery Courts in 1995, 194 involved termination of parental rights; of cases decided on appeal in Mississippi in 1995 (including Court of Appeals and Supreme Court cases), 492 were first appeals of criminal convictions, 67 involved domestic relations, 16 involved child custody). Mississippi's experience with criminal appeals is noteworthy in this regard. In 1995, the Mississippi Court of Appeals disposed of 298 first appeals from criminal convictions, Sup. Ct. of Miss. Ann. Rep. 42 (1995); of those appeals, only seven were appeals from misdemeanor convictions, ibid., notwithstanding our holding in Mayer requiring in forma pauperis transcript access in petty offense prosecutions.[13] 123 In States providing criminal appeals, as we earlier recounted, an indigent's access to appeal, through a transcript of relevant trial proceedings, is secure under our precedent. See supra, at 110-112. That equal access right holds for petty offenses as well as for felonies. But counsel at state expense, we have held, is a constitutional requirement, even in the first instance, only when the defendant faces time in confinement. See supra, at 113. When deprivation of parental status is at stake, however, counsel is sometimes part of the process that is due. See Lassiter, 452 U. S., at 31-32. It would be anomalous to recognize a right to a transcript needed to appeal a misdemeanor convictionthough trial counsel may be flatly deniedbut hold, at the same time, that a transcript need not be prepared for M. L. B.though were her defense sufficiently complex, state-paid counsel, as Lassiter instructs, would be designated for her. In aligning M. L. B.'s case and Mayer parental status termination decrees and criminal convictions that carry no jail timefor appeal access purposes, we do not question the general rule, stated in Ortwein, that fee requirements ordinarily are examined only for rationality. See supra, at 115-116. The State's need for revenue to offset costs, in the mine run of cases, satisfies the rationality requirement, see Ortwein, 410 U. S., at 660; States are not forced by the Constitution to adjust all tolls to account for "disparity in material 124 circumstances." Griffin, 351 U. S., at 23 (Frankfurter, J., concurring in judgment). But our cases solidly establish two exceptions to that general rule. The basic right to participate in political processes as voters and candidates cannot be limited to those who can pay for a license.[14] Nor may access to judicial processes in cases criminal or "quasi criminal in nature," Mayer, 404 U. S., at 196 (citation and internal quotation marks omitted), turn on ability to pay. In accord with the substance and sense of our decisions in Lassiter and Santosky, see supra, at 117-120, we place decrees forever terminating parental rights in the category of cases in which the State may not "bolt the door to equal justice," Griffin, 351 U. S., at 24 (Frankfurter, J., concurring in judgment); see supra, at 110. VI In numerous cases, respondents point out, the Court has held that government "need not provide funds so that people 125 can exercise even fundamental rights." Brief for Respondents 12; see, e. g., Lyng v. Automobile Workers, 485 U.S. 360, 363, n. 2, 370-374 (1988) (rejecting equal protection attack on amendment to Food Stamp Act providing that no household could become eligible for benefits while a household member was on strike); Regan v. Taxation with Representation of Wash., 461 U.S. 540, 543-544, 550-551 (1983) (rejecting nonprofit organization's claims of free speech and equal protection rights to receive tax deductible contributions to support its lobbying activity); Harris v. McRae, 448 U.S. 297, 321-326 (1980) (Medicaid funding need not be provided for women seeking medically necessary abortions). A decision for M. L. B., respondents contend, would dishonor our cases recognizing that the Constitution "generally confer[s] no affirmative right to governmental aid, even where such aid may be necessary to secure life, liberty, or property interests of which the government itself may not deprive the individual." DeShaney v. Winnebago County Dept. of Social Servs., 489 U.S. 189, 196 (1989). Complainants in the cases on which respondents rely sought state aid to subsidize their privately initiated action or to alleviate the consequences of differences in economic circumstances that existed apart from state action. M. L. B.'s complaint is of a different order. She is endeavoring to defend against the State's destruction of her family bonds, and to resist the brand associated with a parental unfitness adjudication. Like a defendant resisting criminal conviction, she seeks to be spared from the State's devastatingly adverse action. That is the very reason we have paired her case with Mayer, not with Ortwein or Kras, discussed supra, at 114-116. Respondents also suggest that Washington v. Davis, 426 U.S. 229 (1976), is instructive because it rejects the notion "that a law, neutral on its face and serving ends otherwise 126 within the power of government to pursue, is invalid under the Equal Protection Clause simply because it may affect a greater proportion of one race than of another," id., at 242. "This must be all the more true," respondents urge, "with respect to an allegedly disparate impact on a class [here, the poor] that, unlike race, is not suspect." Brief for Respondents 31. Washington v. Davis, however, does not have the sweeping effect respondents attribute to it. That case involved a verbal skill test administered to prospective Government employees. "[A] far greater proportion of blacksfour times as manyfailed the test than did whites." 426 U.S., at 237. But the successful test takers included members of both races, as did the unsuccessful examinees. Disproportionate impact, standing alone, the Court held, was insufficient to prove unconstitutional racial discrimination. Were it otherwise, a host of laws would be called into question, "a whole range of tax, welfare, public service, regulatory, and licensing statutes that may be more burdensome to the poor and to the average black than to the more affluent white." Id., at 248. To comprehend the difference between the case at hand and cases controlled by Washington v. Davis,[15] one need look no further than this Court's opinion in Williams v. Illinois, 399 U.S. 235 (1970). Williams held unconstitutional an Illinois law under which an indigent offender could be continued in confinement beyond the maximum prison term specified by statute if his indigency prevented him from satisfying the monetary portion of the sentence. The Court described that law as "`nondiscriminatory on its face,' " and recalled that the law found incompatible with the Constitution in Griffin had been so characterized. 399 U.S., at 242 (quoting Griffin, 351 U. S., at 17, n. 11); see Griffin, 351 U. S., at 17, n. 11 127 ("[A] law nondiscriminatory on its face may be grossly discriminatory in its operation."). But the Williams Court went on to explain that "the Illinois statute in operative effect exposes only indigents to the risk of imprisonment beyond the statutory maximum." 399 U.S., at 242 (emphasis added). Sanctions of the Williams genre, like the Mississippi prescription here at issue, are not merely disproportionate in impact. Rather, they are wholly contingent on one's ability to pay, and thus "visi[t] different consequences on two categories of persons," ibid.; they apply to all indigents and do not reach anyone outside that class. In sum, under respondents' reading of Washington v. Davis, our overruling of the Griffin line of cases would be two decades overdue. It suffices to point out that this Court has not so conceived the meaning and effect of our 1976 "disproportionate impact" precedent. See Bearden v. Georgia, 461 U. S., at 664-665 (adhering in 1983 to "Griffin `s principle of `equal justice' ").[16] Respondents and the dissenters urge that we will open floodgates if we do not rigidly restrict Griffin to cases typed "criminal." See post, at 141-144 (Thomas, J., dissenting); Brief for Respondents 27-28. But we have repeatedly noticed what sets parental status termination decrees apart from mine run civil actions, even from other domestic relations matters such as divorce, paternity, and child custody. See supra, at 117-120, and n. 11. To recapitulate, termination decrees "wor[k] a unique kind of deprivation." Lassiter, 452 U. S., at 27. In contrast to matters modifiable at 128 the parties' will or based on changed circumstances, termination adjudications involve the awesome authority of the State "to destroy permanently all legal recognition of the parental relationship." Rivera, 483 U. S., at 580. Our Lassiter and Santosky decisions, recognizing that parental termination decrees are among the most severe forms of state action, Santosky, 455 U. S., at 759, have not served as precedent in other areas. See supra, at 118, n. 11. We are therefore satisfied that the label "civil" should not entice us to leave undisturbed the Mississippi courts' disposition of this case. Cf. In re Gault, 387 U. S., at 50. * * * For the reasons stated, we hold that Mississippi may not withhold from M. L. B. "a `record of sufficient completeness' to permit proper [appellate] consideration of [her] claims." Mayer, 404 U. S., at 198. Accordingly, we reverse the judgment of the Supreme Court of Mississippi and remand the case for further proceedings not inconsistent with this opinion. It is so ordered. Justice Kennedy, concurring in the judgment.	By order of a Mississippi Chancery Court, petitioner M. L. B.'s parental rights to her two minor children were forever terminated. M. L. B. sought to appeal from the termination decree, but Mississippi required that she pay in advance record preparation fees estimated at $2,352.36. Because M. L. B. lacked funds to pay the fees, her appeal was dismissed. Urging that the size of her pocketbook should not be dispositive when "an interest far more precious than any property right" is at stake, M. L. B. tenders this question, which we agreed to hear and decide: May a State, consistent with the Due Process and Equal Protection Clauses of the Fourteenth Amendment, condition appeals from trial court decrees terminating parental rights on the affected parent's ability to pay record preparation fees? We hold that, just as a State may not block an indigent petty offender's access to an appeal afforded others, see so Mississippi may not deny M. L. B., because of her poverty, appellate review of the sufficiency of the evidence on which the trial court found her unfit to remain a parent. I Petitioner M. L. B. and respondent S. L. J. are, respectively, the biological mother and father of two children, a boy born in April 1985, and a girl born in February 1987. In June 1992, after a marriage that endured nearly eight years, M. L. B. and S. L. J. were divorced. The children remained in their father's custody, as M. L. B. and S. L. J. had agreed at the time of the divorce. S. L. J. married respondent J. P. J. in September 1992. In November of the following year, S. L. J. and J. P. J. filed suit in Chancery Court in Mississippi, seeking to terminate the parental rights of M. L. B. and to gain court approval for adoption of the children by their stepmother, J. P. J. The complaint alleged that M. L. B. had not maintained reasonable visitation and was in arrears on child support payments. M. L. B. counterclaimed, seeking primary custody of both children and contending that S. L. J. had not permitted her reasonable visitation, despite a provision in the divorce decree that he do so. After taking evidence on August 18, November 2, and December 12, 1994, the Chancellor, in a decree filed December 14, 1994, terminated all parental rights of the natural mother, approved the adoption, and ordered that J. P. J., the adopting parent, be shown as the mother of the children on 108 their birth certificates. Twice reciting a segment of the governing Mississippi statute, 103(3)(e) (1994), the Chancellor declared that there had been a "substantial erosion of the relationship between the natural mother, [M. L. B.], and the minor children," which had been caused "at least in part by [M. L. B.'s] serious neglect, abuse, prolonged and unreasonable absence or unreasonable failure to visit or communicate with her minor children." App. to Pet. for Cert. 9, 10.[1] The Chancellor stated, without elaboration, that the natural father and his second wife had met their burden of proof by "clear and convincing evidence." Nothing in the Chancellor's order describes the evidence, however, or otherwise reveals precisely why M. L. B. was decreed, forevermore, a stranger to her children. In January 1995, M. L. B. filed a timely appeal and paid the $100 filing fee. The Clerk of the Chancery Court, several days later, estimated the costs for preparing and transmitting the record: $1,900 for the transcript (950 pages at $2 per page); $438 for other documents in the record (219 pages at $2 per page); $4.36 for binders; and $10 for mailing. Mississippi grants civil litigants a right to appeal, but conditions that right on prepayment of costs. 11-51-29 (Supp. 1996). Relevant portions of a transcript must be ordered, and its preparation costs advanced 109 by the appellant, if the appellant "intends to urge on appeal," as M. L. B. did, "that a finding or conclusion is unsupported by the evidence or is contrary to the evidence." Miss. Rule of App. Proc. 10(b)(2) (1995); see also (Supp. 1996). Unable to pay $2,352.36, M. L. B. sought leave to appeal in forma pauperis. The Supreme Court of Mississippi denied her application in August 1995. Under its precedent, the court said, "[t]he right to proceed in forma pauperis in civil cases exists only at the trial level." App. to Pet. for Cert. 3.[2] M. L. B. had urged in Chancery Court and in the Supreme Court of Mississippi, and now urges in this Court, that "where the State's judicial processes are invoked to secure so severe an alteration of a litigant's fundamental rightsthe termination of the parental relationship with one's natural childbasic notions of fairness [and] of equal protection under the law, guaranteed by [the Mississippi and Federal Constitutions], require that a person be afforded the right of appellate review though one is unable to pay the costs of such review in advance."[3] 110 II Courts have confronted, in diverse settings, the "age-old problem" of "[p]roviding equal justice for poor and rich, weak and powerful alike." Concerning access to appeal in general, and transcripts needed to pursue appeals in particular, is the foundation case. involved an rule that effectively conditioned thoroughgoing appeals from criminal convictions on the defendant's procurement of a transcript of trial See at 13-14, and nn. 2, 3 (noting, inter alia, that "mandatory record," which an indigent defendant could obtain free of charge, did not afford the defendant an opportunity to seek review of trial errors). Indigent defendants, other than those sentenced to death, were not excepted from the rule, so in most cases, defendants without means to pay for a transcript had no access to appellate review at all. Although the Federal Constitution guarantees no right to appellate review, once a State affords that right, held, the State may not "bolt the door to equal justice," at 24 The plurality in recognized "the importance of appellate review to a correct adjudication of guilt or innocence." "[T]o deny adequate review to the poor," the plurality observed, "means that many of them may lose their life, liberty or property because of unjust convictions which appellate courts would set aside." at 19. Judging the rule inconsonant with the Fourteenth Amendment, the plurality drew support from the Due Process and Equal Protection Clauses. at 13, 18. Justice Frankfurter, concurring in the judgment in emphasized and explained the decision's equal protection underpinning: "Of course a State need not equalize economic conditions. But when a State deems it wise and just that 111 convictions be susceptible to review by an appellate court, it cannot by force of its exactions draw a line which precludes convicted indigent persons, forsooth erroneously convicted, from securing such a review" See also Summarizing the line of decisions regarding an indigent defendant's access to appellate review of a conviction,[4] we said in : "This Court has never held that the States are required to establish avenues of appellate review, but it is now fundamental that, once established, these avenues must be kept free of unreasoned distinctions that can only impede open and equal access to the courts." Of prime relevance to the question presented by M. L. B.'s petition, `s principle has not been confined to cases in which imprisonment is at stake. The key case is involved an indigent defendant convicted on nonfelony charges of violating two city ordinances. Fined $250 for each offense, the defendant petitioned for a transcript to support his appeal. He alleged prosecutorial misconduct and insufficient evidence to convict. The State provided free transcripts for indigent appellants 112 in felony cases only. We declined to limit to cases in which the defendant faced incarceration. "The invidiousness of the discrimination that exists when criminal procedures are made available only to those who can pay," the Court said in "is not erased by any differences in the sentences that may be imposed." Petty offenses could entail serious collateral consequences, the Court noted. Ib The principle, underscored, "is a flat prohibition," against "making access to appellate processes from even [the State's] most inferior courts depend upon the [convicted] defendant's ability to pay," An impecunious party, the Court ruled, whether found guilty of a felony or conduct only "quasi criminal in nature," at "cannot be denied a record of sufficient completeness to permit proper [appellate] consideration of his claims," at 198 (internal quotation marks omitted).[5] In contrast to the "flat prohibition" of "bolted doors" that the line of cases securely established, the right to 113 counsel at state expense, as delineated in our decisions, is less encompassing. A State must provide trial counsel for an indigent defendant charged with a felony, but that right does not extend to nonfelony trials if no term of imprisonment is actually imposed, A State's obligation to provide appellate counsel to poor defendants faced with incarceration applies to appeals of right. In however, we held that neither the Due Process Clause nor the Equal Protection Clause requires a State to provide counsel at state expense to an indigent prisoner pursuing a discretionary appeal in the state system or petitioning for review in this 612, 6-618. III We have also recognized a narrow category of civil cases in which the State must provide access to its judicial processes without regard to a party's ability to pay court fees. In we held that the State could not deny a divorce to a married couple based on their inability to pay approximately $60 in court costs. Crucial to our decision in was the fundamental interest at stake. "[G]iven the basic position of the marriage relationship in this society's hierarchy of values and the concomitant state monopolization of the means for legally dissolving this relationship," we said, due process "prohibit[s] a State from denying, solely because of inability to pay, access to its courts to individuals who seek judicial dissolution of their marriages." ; see also Soon after in the Court confronted a double-bond requirement imposed by Oregon law only on tenants seeking to appeal adverse 114 decisions in eviction actions. We referred first to precedent recognizing that, "if a full and fair trial on the merits is provided, the Due Process Clause of the Fourteenth Amendment does not require a State to provide appellate review." We next stated, however, that "[w]hen an appeal is afforded, it cannot be granted to some litigants and capriciously or arbitrarily denied to others without violating the Equal Protection Clause." Ib Oregon's double-bond requirement failed equal protection measurement, we concluded, because it raised a substantial barrier to appeal for a particular class of litigantstenants facing evictiona barrier "faced by no other civil litigant in Oregon." at 79. The Court pointed out in Lindsey that the classification there at issue disadvantaged nonindigent as well as indigent appellants, ib; the Lindsey decision, therefore, does not guide our inquiry here. The following year, in United the Court clarified that a constitutional requirement to waive court fees in civil cases is the exception, not the general rule. concerned fees, totaling $50, required to secure a discharge in bankruptcy. at 436. The Court recalled in that "[o]n many occasions we have recognized the fundamental importance under our Constitution" of "the associational interests that surround the establishment and dissolution of th[e] [marital] relationship."[6] But bankruptcy discharge entails no "fundamental 115 interest," we sa Although "obtaining [a] desired new start in life [is] important," that interest, the Court explained, "does not rise to the same constitutional level" as the interest in establishing or dissolving a marriage. Ib[7] Nor is resort to court the sole path to securing debt forgiveness, we stressed; in contrast, termination of a marriage, we reiterated, requires access to the State's judicial machinery. -446; see In the Court adhered to the line drawn in The appellants in sought court review of agency determinations reducing their welfare benefits. Alleging poverty, they challenged, as applied to them, an Oregon statute requiring appellants in civil cases to pay a $25 fee. We summarily affirmed the Oregon Supreme Court's judgment rejecting appellants' challenge. As in the Court saw no "`fundamental interest gained or lost depending on the availability' of the relief sought by [the complainants]." (quoting 409 U. S., ). Absent a fundamental interest or classification attracting heightened scrutiny, we said, the applicable equal protection standard 1 "is that of rational justification," a requirement we found satisfied by Oregon's need for revenue to offset the expenses of its court We expressly rejected the appellants' argument that a fee waiver was required for all civil appeals simply because the State chose to permit in forma pauperis filings in special classes of civil appeals, including appeals from terminations of parental rights. at 661. In sum, as underscored, this Court has not extended to the broad array of civil cases. But tellingly, the Court has consistently set apart from the mine run of cases those involving state controls or intrusions on family relationships. In that domain, to guard against undue official intrusion, the Court has examined closely and contextually the importance of the governmental interest advanced in defense of the intrusion. Cf. IV Choices about marriage, family life, and the upbringing of children are among associational rights this Court has ranked as "of basic importance in our society," rights sheltered by the Fourteenth Amendment against the State's unwarranted usurpation, disregard, or disrespect. See, for example, and ; 3 U.S. 535 ; and M. L. B.'s case, involving the State's authority to sever permanently a parent-child bond,[8] demands the close consideration 117 the Court has long required when a family association so undeniably important is at stake. We approach M. L. B.'s petition mindful of the gravity of the sanction imposed on her and in light of two prior decisions most immediately in point: 8 and concerned the appointment of counsel for indigent persons seeking to defend against the State's termination of their parental status. The Court held that appointed counsel was not routinely required to assure a fair adjudication; instead, a case-by-case determination of the need for counsel would suffice, an assessment to be made "in the first instance by the trial court, subject to appellate review." For probation-revocation hearings where loss of conditional liberty is at issue, the Court observed, our precedent is not doctrinaire; due process is provided, we have held, when the decision whether counsel should be appointed is made on a case-by-case basis. See In criminal prosecutions that do not lead to the defendant's incarceration, however, our precedent recognizes no right to appointed counsel. See 440 U. S., at Parental termination cases, the Court concluded, are most appropriately ranked with probation-revocation hearings: While the Court declined to recognize an automatic right to appointed counsel, it said that an appointment would be due when warranted by the character and difficulty of the case. See -32.[9] Significant to the disposition of M. L. B.'s case, the Court considered it "plain that a parent's desire for 118 and right to `the companionship, care, custody, and management of his or her children' is an important interest," one that "`undeniably warrants deference and, absent a powerful countervailing interest, protection.' " ). The object of the proceeding is "not simply to infringe upon [the parent's] interest," the Court recognized, "but to end it"; thus, a decision against the parent "work[s] a unique kind of deprivation." 452 U. S., For that reason, "[a] parent's interest in the accuracy and justice of the decision is a commanding one." Ib; see also ("A termination of parental rights is both total and irrevocable. Unlike other custody proceedings, it leaves the parent with no right to visit or communicate with the child" (footnote omitted)). held that a "clear and convincing" proof standard is constitutionally required in parental termination -770.[10] In so ruling, the Court again emphasized that a termination decree is "final and irrevocable." "Few forms of state action," the Court said, "are both so severe and so irreversible." Ib[11] As in the Court characterized the parent's interest as "commanding," indeed, 119 "far more precious than any property right." -759. Although both and yielded divided opinions, the Court was unanimously of the view that "the interest of parents in their relationship with their children is sufficiently fundamental to come within the finite class of liberty interests protected by the Fourteenth Amendment." 455 U.S., 4 It was also the Court's unanimous view that "[f]ew consequences of judicial action are so grave as the severance of natural family ties." V Guided by this Court's precedent on an indigent's access to judicial processes in criminal and civil cases, and on proceedings to terminate parental status, we turn to the classification question this case presents: Does the Fourteenth Amendment require Mississippi to accord M. L. B. access to an appealavailable but for her inability to advance required costsbefore she is forever branded unfit for affiliation with her children? Respondents urge us to classify M. L. B.'s case with the generality of civil cases, in which indigent persons have no constitutional right to proceed in forma pauperis. See at 114-1. M. L. B., on the other hand, maintains that the accusatory state action she is trying to fend off[12] is barely distinguishable from criminal condemnation in view of the magnitude and permanence of the loss she faces. Cf. In re See also 760 For the purpose at hand, M. L. B. 120 asks us to treat her parental termination appeal as we have treated petty offense appeals; she urges us to adhere to the reasoning in see and rule that Mississippi may not withhold the transcript M. L. B. needs to gain review of the order ending her parental status. Guided by and and other decisions acknowledging the primacy of the parent-child relationship, e. g., Stanley v. 405 U. S., at ; Meyer 262 U. S., 9, we agree that the decision points to the disposition proper in this case. We observe first that the Court's decisions concerning access to judicial processes, commencing with and running through reflect both equal protection and due process concerns. See -609. As we said in in the Court's -line cases, "[d]ue process and equal protection principles converge." The equal protection concern relates to the legitimacy of fencing out would-be appellants based solely on their inability to pay core costs. See 351 U. S., ( ). The due process concern homes in on the essential fairness of the state-ordered proceedings anterior to adverse state action. See A "precise rationale" has not been composed, at 608, because cases of this order "cannot be resolved by resort to easy slogans or pigeonhole analysis," Nevertheless, "[m]ost decisions in this area," we have recognized, "res[t] on an equal protection framework," at as M. L. B.'s plea heavily does, for, as we earlier observed, see due process does not independently require that the State provide a right to appeal. We place this case within the framework established by our past decisions in this area. In line with those decisions, we inspect the character and intensity of the individual interest at stake, on the one hand, and the State's 121 justification for its exaction, on the other. See -667. We now focus on and the considerations linking that decision to M. L. B.'s case. applied to a petty offender, fined a total of $500, who sought to appeal from the trial court's judgment. See An "impecunious medical student," the defendant in could not pay for a transcript. We held that the State must afford him a record complete enough to allow fair appellate consideration of his claims. The defendant in faced no term of confinement, but the conviction, we observed, could affect his professional prospects and, possibly, even bar him from the practice of medicine. Ib The State's pocketbook interest in advance payment for a transcript, we concluded, was unimpressive when measured against the stakes for the defendant. Ib Similarly here, the stakes for petitioner M. L. B.forced dissolution of her parental rightsare large, "`more substantial than mere loss of money.' " ). In contrast to loss of custody, which does not sever the parentchild bond, parental status termination is "irretrievabl[y] destructi[ve]" of the most fundamental family relationship. And the risk of error, Mississippi's experience shows, is considerable. See 9, n. 3. Consistent with Mississippi has, by statute, adopted a "clear and convincing proof" standard for parental status termination cases. -109 (Supp. 1996). Nevertheless, the Chancellor's termination order in this case simply recites statutory language; it describes no evidence, and otherwise details no reasons for finding M. L. B. "clear[ly] and convincing[ly]" unfit to be a parent. See 7-108. Only a transcript can reveal to judicial minds other than the Chancellor's the sufficiency, 122 or insufficiency, of the evidence to support his stern judgment. The countervailing government interest, as in is financial. Mississippi urges, as the justification for its appeal cost prepayment requirement, the State's legitimate interest in offsetting the costs of its court Brief for Respondents 4, 8, n. 1, 27-30. But in the tightly circumscribed category of parental status termination cases, appeals are few, and not likely to impose an undue burden on the State. See Brief for Petitioner 20, 25 (observing that only reported appeals in Mississippi from 1980 until 1996 referred to the State's termination statute, and only 12 of those decisions addressed the merits of the grant or denial of parental rights); Brief for Respondents 28 (of 63,765 civil actions filed in Mississippi Chancery Courts in 1995, 194 involved termination of parental rights; of cases decided on appeal in Mississippi in 1995 (including Court of Appeals and Supreme Court cases), 492 were first appeals of criminal convictions, 67 involved domestic relations, involved child custody). Mississippi's experience with criminal appeals is noteworthy in this regard. In 1995, the Mississippi Court of Appeals disposed of 298 first appeals from criminal convictions, Sup. Ct. of Miss. Ann. Rep. 42 (1995); of those appeals, only seven were appeals from misdemeanor convictions, ib, notwithstanding our holding in requiring in forma pauperis transcript access in petty offense prosecutions.[13] 123 In States providing criminal appeals, as we earlier recounted, an indigent's access to appeal, through a transcript of relevant trial proceedings, is secure under our precedent. See -112. That equal access right holds for petty offenses as well as for felonies. But counsel at state expense, we have held, is a constitutional requirement, even in the first instance, only when the defendant faces time in confinement. See When deprivation of parental status is at stake, however, counsel is sometimes part of the process that is due. See -32. It would be anomalous to recognize a right to a transcript needed to appeal a misdemeanor convictionthough trial counsel may be flatly deniedbut hold, at the same time, that a transcript need not be prepared for M. L. B.though were her defense sufficiently complex, state-paid counsel, as instructs, would be designated for her. In aligning M. L. B.'s case and parental status termination decrees and criminal convictions that carry no jail timefor appeal access purposes, we do not question the general rule, stated in that fee requirements ordinarily are examined only for rationality. See at 115-1. The State's need for revenue to offset costs, in the mine run of cases, satisfies the rationality requirement, see ; States are not forced by the Constitution to adjust all tolls to account for "disparity in material 124 circumstances." 351 U. S., But our cases solidly establish two exceptions to that general rule. The basic right to participate in political processes as voters and candidates cannot be limited to those who can pay for a license.[14] Nor may access to judicial processes in cases criminal or "quasi criminal in nature," turn on ability to pay. In accord with the substance and sense of our decisions in and see we place decrees forever terminating parental rights in the category of cases in which the State may not "bolt the door to equal justice," ; see VI In numerous cases, respondents point out, the Court has held that government "need not provide funds so that people 125 can exercise even fundamental rights." Brief for Respondents 12; see, e. g., ; ; A decision for M. L. B., respondents contend, would dishonor our cases recognizing that the Constitution "generally confer[s] no affirmative right to governmental aid, even where such aid may be necessary to secure life, liberty, or property interests of which the government itself may not deprive the individual." Complainants in the cases on which respondents rely sought state aid to subsidize their privately initiated action or to alleviate the consequences of differences in economic circumstances that existed apart from state action. M. L. B.'s complaint is of a different order. She is endeavoring to defend against the State's destruction of her family bonds, and to resist the brand associated with a parental unfitness adjudication. Like a defendant resisting criminal conviction, she seeks to be spared from the State's devastatingly adverse action. That is the very reason we have paired her case with not with or discussed at 114-1. Respondents also suggest that is instructive because it rejects the notion "that a law, neutral on its face and serving ends otherwise 126 within the power of government to pursue, is invalid under the Equal Protection Clause simply because it may affect a greater proportion of one race than of another," "This must be all the more true," respondents urge, "with respect to an allegedly disparate impact on a class [here, the poor] that, unlike race, is not suspect." Brief for Respondents 31. however, does not have the sweeping effect respondents attribute to it. That case involved a verbal skill test administered to prospective Government employees. "[A] far greater proportion of blacksfour times as manyfailed the test than did whites." 426 U.S., 7. But the successful test takers included members of both races, as did the unsuccessful examinees. Disproportionate impact, standing alone, the Court held, was insufficient to prove unconstitutional racial discrimination. Were it otherwise, a host of laws would be called into question, "a whole range of tax, welfare, public service, regulatory, and licensing statutes that may be more burdensome to the poor and to the average black than to the more affluent white." To comprehend the difference between the case at hand and cases controlled by[15] one need look no further than this Court's opinion in Williams v. Williams held unconstitutional an law under which an indigent offender could be continued in confinement beyond the maximum prison term specified by statute if his indigency prevented him from satisfying the monetary portion of the sentence. The Court that law as "`nondiscriminatory on its face,' " and recalled that the law found incompatible with the Constitution in had been so 399 U.S., (quoting n. 11); see n. 11 127 ("[A] law nondiscriminatory on its face may be grossly discriminatory in its operation."). But the Williams Court went on to explain that "the statute in operative effect exposes only indigents to the risk of imprisonment beyond the statutory maximum." 399 U.S., Sanctions of the Williams genre, like the Mississippi prescription here at issue, are not merely disproportionate in impact. Rather, they are wholly contingent on one's ability to pay, and thus "visi[t] different consequences on two categories of persons," ib; they apply to all indigents and do not reach anyone outside that class. In sum, under respondents' reading of our overruling of the line of cases would be two decades overdue. It suffices to point out that this Court has not so conceived the meaning and effect of our 1976 "disproportionate impact" precedent. See - (adhering in 1983 to " `s principle of `equal justice' ").[] Respondents and the dissenters urge that we will open floodgates if we do not rigidly restrict to cases typed "criminal." See post, at 141-144 (Thomas, J., dissenting); Brief for Respondents 27-28. But we have repeatedly noticed what sets parental status termination decrees apart from mine run civil actions, even from other domestic relations matters such as divorce, paternity, and child custody. See and n. 11. To recapitulate, termination decrees "wor[k] a unique kind of deprivation." 452 U. S., In contrast to matters modifiable at 128 the parties' will or based on changed circumstances, termination adjudications involve the awesome authority of the State "to destroy permanently all legal recognition of the parental relationship." Our and decisions, recognizing that parental termination decrees are among the most severe forms of state action, 455 U. S., have not served as precedent in other areas. See We are therefore satisfied that the label "civil" should not entice us to leave undisturbed the Mississippi courts' disposition of this case. Cf. In re * * For the reasons stated, we hold that Mississippi may not withhold from M. L. B. "a `record of sufficient completeness' to permit proper [appellate] consideration of [her] claims." Accordingly, we reverse the judgment of the Supreme Court of Mississippi and remand the case for further proceedings not inconsistent with this opinion. It is so ordered. Justice Kennedy, concurring in the judgment.	1,886
Justice Kennedy	concurring	false	Mlb v. Slj	1996-12-16	null	https://www.courtlistener.com/opinion/118071/mlb-v-slj/	https://www.courtlistener.com/api/rest/v3/clusters/118071/	1,996	1996-010	2	6	3	The Court gives a most careful and comprehensive recitation of the precedents from Griffin v. Illinois, 351 U.S. 12 (1956), through Mayer v. Chicago, 404 U.S. 189 (1971), and beyond, a line of decisions which invokes both equal protection and due process principles. The duality, as the Court notes, stems from Griffin itself, which produced no opinion for the Court and invoked strands of both constitutional doctrines. In my view the cases most on point, and the ones which persuade me we must reverse the judgment now reviewed, are the decisions addressing procedures involving the rights and privileges inherent in family and personal relations. *129 These are Boddie v. Connecticut, 401 U.S. 371 (1971); Lassiter v. Department of Social Servs. of Durham Cty., 452 U.S. 18 (1981); and Santosky v. Kramer, 455 U.S. 745 (1982), all cases resting exclusively upon the Due Process Clause. Here, due process is quite a sufficient basis for our holding. I acknowledge the authorities do not hold that an appeal is required, even in a criminal case; but given the existing appellate structure in Mississippi, the realities of the litigation process, and the fundamental interests at stake in this particular proceeding, the State may not erect a bar in the form of transcript and filing costs beyond this petitioner's means. The Court well describes the fundamental interests the petitioner has in ensuring that the order which terminated all her parental ties was based upon a fair assessment of the facts and the law. See Mathews v. Eldridge, 424 U.S. 319, 335 (1976). With these observations, I concur in the judgment.	The Court gives a most careful and comprehensive recitation of the precedents from through and beyond, a line of decisions which invokes both equal protection and due process principles. The duality, as the Court notes, stems from Griffin itself, which produced no opinion for the Court and invoked strands of both constitutional doctrines. In my view the cases most on point, and the ones which persuade me we must reverse the judgment now reviewed, are the decisions addressing procedures involving the rights and privileges inherent in family and personal relations. *129 These are ; ; and all cases resting exclusively upon the Due Process Clause. Here, due process is quite a sufficient basis for our holding. I acknowledge the authorities do not hold that an appeal is required, even in a criminal case; but given the existing appellate structure in Mississippi, the realities of the litigation process, and the fundamental interests at stake in this particular proceeding, the State may not erect a bar in the form of transcript and filing costs beyond this petitioner's means. The Court well describes the fundamental interests the petitioner has in ensuring that the order which terminated all her parental ties was based upon a fair assessment of the facts and the law. See With these observations, I concur in the judgment.	1,887
Justice Rehnquist	dissenting	false	Mlb v. Slj	1996-12-16	null	https://www.courtlistener.com/opinion/118071/mlb-v-slj/	https://www.courtlistener.com/api/rest/v3/clusters/118071/	1,996	1996-010	2	6	3	I join all but Part II of Justice Thomas' dissenting opinion. For the reasons stated in that opinion, I would not extend the Griffin-Mayer line of cases to invalidate Mississippi's refusal to pay for petitioner's transcript on appeal in this case.	I join all but Part II of Justice Thomas' dissenting opinion. For the reasons stated in that opinion, I would not extend the Griffin-Mayer line of cases to invalidate Mississippi's refusal to pay for petitioner's transcript on appeal in this case.	1,888
Justice Thomas	second_dissenting	false	Mlb v. Slj	1996-12-16	null	https://www.courtlistener.com/opinion/118071/mlb-v-slj/	https://www.courtlistener.com/api/rest/v3/clusters/118071/	1,996	1996-010	2	6	3	Today the majority holds that the Fourteenth Amendment requires Mississippi to afford petitioner a free transcript because her civil case involves a "fundamental" right. The majority seeks to limit the reach of its holding to the type of case we confront here, one involving the termination of parental rights. I do not think, however, that the new-found constitutional right to free transcripts in civil appeals can be 130 effectively restricted to this case. The inevitable consequence will be greater demands on the States to provide free assistance to would-be appellants in all manner of civil cases involving interests that cannot, based on the test established by the majority, be distinguished from the admittedly important interest at issue here. The cases on which the majority relies, primarily cases requiring appellate assistance for indigent criminal defendants, were questionable when decided, and have, in my view, been undermined since. Even accepting those cases, however, I am of the view that the majority takes them too far. I therefore dissent. I Petitioner requests relief under both the Due Process and Equal Protection Clauses, though she does not specify how either Clause affords it. The majority accedes to petitioner's request. But, carrying forward the ambiguity in the cases on which it relies, the majority does not specify the source of the relief it grants. Those decisions are said to "reflect both equal protection and due process concerns." Ante, at 120. And, while we are told that "cases of this order `cannot be resolved by resort to easy slogans or pigeonhole analysis,' " ibid. (quoting Bearden v. Georgia, 461 U.S. 660, 666 (1983)), the majority nonetheless acknowledges that "`[m]ost decisions in this area . . . res[t] on an equal protection framework,' " ante, at 120 (quoting Bearden, supra, at 665). It then purports to "place this case within the framework established by our past decisions in this area." Ante, at 120. It is not clear to me whether the majority disavows any due process support for its holding. (Despite the murky disclaimer, the majority discusses numerous cases that squarely relied on due process considerations.) I therefore analyze petitioner's claim under both the Due Process and Equal Protection Clauses. If neither Clause affords petitioner the right to a free, civil-appeal transcript, I assume that no amalgam of the two does. 131 A We have indicated on several occasions in this century that the interest of parents in maintaining their relationships with their children is "an important interest that `undeniably warrants deference and, absent a powerful countervailing interest, protection.' " Lassiter v. Department of Social Servs. of Durham Cty., 452 U.S. 18, 27 (1981) (quoting Stanley v. Illinois, 405 U.S. 645, 651 (1972)). Assuming that petitioner's interest may not be impinged without due process of law, I do not think that the Due Process Clause requires the result the majority reaches. Petitioner's largest obstacle to a due process appeal gratis is our oft-affirmed view that due process does not oblige States to provide for any appeal, even from a criminal conviction. See, e. g., Griffin v. Illinois, 351 U.S. 12, 18 (1956) (plurality opinion) (noting that "a State is not required by the Federal Constitution to provide appellate courts or a right to appellate review at all" (citation omitted)); McKane v. Durston, 153 U.S. 684, 687 (1894) ("A review by an appellate court of the final judgment in a criminal case, however grave the offence of which the accused is convicted, was not at common law and is not now a necessary element of due process of law. It is wholly within the discretion of the State to allow or not to allow such a review. A citation of authorities upon the point is unnecessary"). To be sure, we have indicated, beginning with Griffin v. Illinois, that where an appeal is provided, States may be prohibited from erecting barriers to those unable to pay. As I described last Term in my concurring opinion in Lewis v. Casey, 518 U.S. 343, 368373 (1996), however, I believe that these cases are best understood as grounded in equal protection analysis, and thus make no inroads on our longstanding rule that States that accord due process in a hearing-level tribunal need not provide further review. The majority reaffirms that due process does not require an appeal. Ante, at 110, 120. Indeed, as I noted above, it 132 is not clear that the majority relies on the Due Process Clause at all. The majority does discuss, however, one case in which the Court stated its holding in terms of due process: Boddie v. Connecticut, 401 U.S. 371 (1971). In Boddie, the Court held violative of due process a Connecticut statute that exacted fees averaging $60 from persons seeking marital dissolution. Citing the importance of the interest in ending a marriage, and the State's monopoly over the mechanisms to accomplish it, we explained that, "at a minimum" and "absent a countervailing state interest of overriding significance, persons forced to settle their claims of right and duty through the judicial process must be given a meaningful opportunity to be heard." Id., at 377. Boddie has little to do with this case. It, "of course, was not concerned with post-hearing review." Ortwein v. Schwab, 410 U.S. 656, 659 (1973). Rather, the concern in Boddie was that indigent persons were deprived of "fundamental rights" with no hearing whatsoever. Petitioner, in contrast, received not merely a hearing, but in fact enjoyed procedural protections above and beyond what our parental termination cases have required. She received both notice and a hearing before a neutral, legally trained decisionmaker. She was represented by counseleven though due process does not in every case require the appointment of counsel. See Lassiter , supra, at 24. Through her attorney, petitioner was able to confront the evidence and witnesses against her. And, in accordance with Santosky v. Kramer, 455 U.S. 745, 769 (1982), the Chancery Court was required to find that petitioner's parental unfitness was proved by clear and convincing evidence. Indeed, petitioner points to no hearinglevel process to which she was entitled that she did not receive. Given the many procedural protections afforded petitioner, I have little difficulty concluding that "due process has . . . been accorded in the tribunal of first instance." Ohio ex rel. Bryant v. Akron Metropolitan Park Dist., 281 U.S. 74, 80 133 (1930). Due process has never compelled an appeal where, as here, its rigors are satisfied by an adequate hearing. Those cases in which the Court has required States to alleviate financial obstacles to process beyond a hearingthough sometimes couched in due process termshave been based on the equal protection proposition that if the State chooses to provide for appellate review, it "`can no more discriminate on account of poverty than on account of religion, race, or color.' " Lewis v. Casey, supra, at 371 (Thomas, J., concurring) (quoting Griffin v. Illinois, supra, at 17 (plurality opinion)) (footnote omitted). There seems, then, no place in the Due Process Clausecertainly as an original matter, and even as construed by this Courtfor the constitutional "right" crafted by the majority today. I turn now to the other possible source: The Equal Protection Clause. B As I stated last Term in Lewis v. Casey, I do not think that the equal protection theory underlying the Griffin line of cases remains viable. See 518 U.S., at 373-378. There, I expressed serious reservations as to the continuing vitality of Bounds v. Smith, 430 U.S. 817 (1977) (requiring prison authorities to provide prisoners with adequate law libraries or legal assistance). As it did in Bounds, the Court today not only adopts the equal protection theory of Griffin v. Illinois which was dubious ab initio and which has been undermined sincebut extends it. Thus, much of what I said in Lewis v. Casey bears repeating here. In Griffin, the State of Illinois required all criminal appellants whose claims on appeal required review of a trial transcript to obtain it themselves. The plurality thought that this "discriminate[d] against some convicted defendants on account of their poverty," 351 U.S., at 18 (plurality opinion). Justice Harlan, in dissent, perceived a troubling shift in this Court's equal protection jurisprudence. The Court, he noted, did not "dispute either the necessity for a bill of exceptions 134 or the reasonableness of the general requirement that the trial transcript, if used in its preparation, be paid for by the appealing party." Id., at 35. But, because requiring each would-be appellant to bear the costs of appeal hit the poor harder, the majority divined "an invidious classification between the `rich' and the `poor.' " Ibid. Disputing this early manifestation of the "disparate impact" theory of equal protection, Justice Harlan argued: "[N]o economic burden attendant upon the exercise of a privilege bears equally upon all, and in other circumstances the resulting differentiation is not treated as an invidious classification by the State, even though discrimination against `indigents' by name would be unconstitutional." Ibid. Justice Harlan offered the example of a state university that conditions an education on the payment of tuition. If charging tuition did not create a discriminatory classification, then, Justice Harlan wondered, how did any other reasonable exaction by a State for a service it provides? "The resulting classification would be invidious in all cases, and an invidious classification offends equal protection regardless of the seriousness of the consequences." Ibid. (emphasis deleted). The issue in Griffin was not whether Illinois had made a reasonable classification, but whether the State acted reasonably in failing to remove disabilities that existed wholly independently of state action. To Justice Harlan this was not an inquiry typically posed under the Equal Protection Clause. In Douglas v. California, 372 U.S. 353 (1963), Justice Harlan again confronted what Justice Clark termed the Court's "fetish for indigency," id., at 359 (dissenting opinion). Regarding a law limiting the appointment of appellate counsel for indigents, Justice Harlan pointed out that "[l]aws such as these do not deny equal protection to the less fortunate for one essential reason: the Equal Protection Clause does not impose on the States `an affirmative duty to lift the handicaps 135 flowing from differences in economic circumstances.' " Id., at 362 (dissenting opinion) (footnote omitted). Justice Harlan's views were accepted by the Court in Washington v. Davis, 426 U.S. 229 (1976), in which "[w]e rejected a disparate impact theory of the Equal Protection Clause altogether." Lewis v. Casey, supra, at 375 (concurring opinion). We spurned the claim that "a law, neutral on its face and serving ends otherwise within the power of government to pursue, is invalid under the Equal Protection Clause simply because it may affect a greater proportion of one race than of another." 426 U.S., at 242. Absent proof of discriminatory purpose, official action did not violate the Fourteenth Amendment "solely because it has a racially disparate impact." Id., at 239 (emphasis in original). Hearkening back to Justice Harlan's dissents in Griffin and Douglas, we recognized that "[a] rule that a statute designed to serve neutral ends is nevertheless invalid, absent compelling justification, if in practice it benefits or burdens one race more than another would be far reaching and would raise serious questions about, and perhaps invalidate, a whole range of tax, welfare, public service, regulatory, and licensing statutes that may be more burdensome to the poor and to the average black than to the more affluent white." 426 U.S., at 248 (footnote omitted). The lesson of Davis is that the Equal Protection Clause shields only against purposeful discrimination: A disparate impact, even upon members of a racial minority, the classification of which we have been most suspect, does not violate equal protection. The Clause is not a panacea for perceived social or economic inequity; it seeks to "guarante[e] equal laws, not equal results." Personnel Administrator of Mass. v. Feeney, 442 U.S. 256, 273 (1979). Since Davis, we have regularly required more of an equal protection claimant than a showing that state action has a 136 harsher effect on him or her than on others. See, e. g., Harris v. McRae, 448 U.S. 297, 324, n. 26 (1980) ("The equal protection component of the Fifth Amendment prohibits only purposeful discrimination, and when a facially neutral federal statute is challenged on equal protection grounds, it is incumbent upon the challenger to prove that Congress selected or reaffirmed a particular course of action at least in part because of, not merely in spite of, its adverse effects upon an identifiable group" (internal quotation marks and citations omitted)); see also Lewis v. Casey, 518 U. S., at 375 (concurring opinion) (citing cases). Our frequent pronouncements that the Fourteenth Amendment is not violated by disparate impact have spanned challenges to statutes alleged to affect disproportionately members of one race, Washington v. Davis, supra; members of one sex, Personnel Administrator v. Feeney, supra; and poor persons seeking to exercise protected rights, Harris v. McRae, supra; Maher v. Roe, 432 U.S. 464, 470-471 (1977). The majority attempts to avoid what I regard as the irresistible force of the Davis line of cases, but I am unconvinced by the effort. The majority states that persons in cases like those cited above "sought state aid to subsidize their privately initiated action or to alleviate the consequences of differences in economic circumstances that existed apart from state action." Ante, at 125. Petitioner, in apparent contrast, "is endeavoring to defend against the State's destruction of her family bonds, and to resist the brand associated with a parental unfitness adjudication." Ibid. She, "[l]ike a defendant resisting criminal conviction, . . . seeks to be spared from the State's devastatingly adverse action." Ibid. But, also like a defendant resisting criminal conviction, petitioner is not constitutionally entitled to post-trial process. See ante, at 110, 120. She defended against the "destruction of her family bonds" in the Chancery Court hearing at which she was accorded all the process this Court has required of the States in parental termination cases. She now desires "state aid to subsidize [her] privately initiated" 137 appealan appeal that neither petitioner nor the majority claims Mississippi is required to provideto overturn the determination that resulted from that hearing. I see no principled difference between a facially neutral rule that serves in some cases to prevent persons from availing themselves of state employment, or a state-funded education, or a state-funded abortioneach of which the State may, but is not required to, provideand a facially neutral rule that prevents a person from taking an appeal that is available only because the State chooses to provide it. Nor does Williams v. Illinois, 399 U.S. 235 (1970), a case decided six years earlier, operate to limit Washington v. Davis. Williams was yet another manifestation of the "equalizing" notion of equal protection that this Court began to question in Davis. See Williams, supra, at 260 (Harlan, J., concurring in result). To the extent its reasoning survives Davis, I think that Williams is distinguishable. Petitioner Williams was incarcerated beyond the maximum statutory sentence because he was unable to pay the fine imposed as part of his sentence. We found the law that permitted prisoners to avoid extrastatutory imprisonment only by paying their fines to violate the Equal Protection Clause. Even though it was "`nondiscriminatory on its face,' " the law "work[ed] an invidious discrimination" as to Williams and all other indigents because they could not afford to pay their fines. 399 U.S., at 242. The majority concludes that the sanctions involved in Williams are analogous to "the Mississippi prescription here at issue," in that both do not have merely a disparate impact, "they apply to all indigents and do not reach anyone outside that class." Ante, at 127. Even assuming that Williams' imprisonment gave rise to an equal protection violation, however, M. L. B.'s circumstances are not comparable. M. L. B.'s parental rights were terminatedthe analog to Williams' extended imprisonmentbecause the Chancery Court found, after a hearing, that she was unfit to remain her children's mother, not because she was indigent. Her indigency only prevented her from taking 138 advantage of procedures above and beyond those required by the Constitutionin the same way that indigency frequently prevents persons from availing themselves of a variety of state services.[1] The Griffin line of cases ascribed toone might say announcedan equalizing notion of the Equal Protection Clause that would, I think, have startled the Fourteenth Amendment's Framers. In those cases, the Court did not find, nor did it seek, any purposeful discrimination on the part of the state defendants. That their statutes had disproportionate effect on poor persons was sufficient for us to find a constitutional violation. In Davis, among other cases, we began to recognize the potential mischief of a disparate impact theory writ large, and endeavored to contain it. In this case, I would continue that enterprise. Mississippi's requirement of prepaid transcripts in civil appeals seeking to contest the sufficiency of the evidence adduced at trial is facially neutral; it creates no classification. The transcript rule reasonably obliges would-be appellants to bear the costs of availing themselves of a service that the State chooses, but is not constitutionally required, to provide.[2] Any adverse 139 impact that the transcript requirement has on any person seeking to appeal arises not out of the State's action, but out of factors entirely unrelated to it. II If this case squarely presented the question, I would be inclined to vote to overrule Griffin and its progeny. Even were I convinced that the cases on which the majority today relies ought to be retained, I could not agree with the majority's extension of them. The interest at stake in this case differs in several important respects from that at issue in cases such as Griffin. Petitioner's interest in maintaining a relationship with her children is the subject of a civil, not criminal, action. While certain civil suits may tend at the margin toward criminal cases, and criminal cases may likewise drift toward civil suits, the basic distinction between the two finds root in the Constitution and has largely retained its vitality in our jurisprudence. In dissent in Boddie v. Connecticut, Justice Black stated that "in Griffin the Court studiously and carefully refrained from saying one word or one sentence suggesting that the rule there announced to control rights of criminal defendants would control in the quite different field of civil cases." 401 U.S., at 390. The Constitution provides for a series of protections of the unadorned liberty interest at stake in criminal proceedings. These express protections include the Fifth Amendment's guarantee of grand jury indictment, and protection against double jeopardy and selfincrimination; the Sixth Amendment's guarantees of a speedy and public jury trial, of the ability to confront witnesses, and of compulsory process and assistance of counsel; and the Eighth Amendment's protections against excessive bail and fines, and against cruel and unusual punishment. This Court has given content to these textual protections, and has identified others contained in the Due Process Clause. These protections are not available to the typical 140 civil litigant. Even where the interest in a civil suit has been labeled "fundamental," as with the interest in parental termination suits, the protections extended pale by comparison. A party whose parental rights are subject to termination is entitled to appointed counsel, but only in certain circumstances. See Lassiter, 452 U. S., at 31-32. His or her rights cannot be terminated unless the evidence meets a standard higher than the preponderance standard applied in the typical civil suit, but the standard is still lower than that required before a guilty verdict. See Santosky v. Kramer, 455 U. S., at 769-770. That said, it is true enough that civil and criminal cases do not always stand in bold relief to one another. Mayer v. Chicago, 404 U.S. 189 (1971), marks a particularly discomfiting point along the border between the civil and criminal areas. Based on Griffin, the Court determined there that an indigent defendant had a constitutional right to a free transcript in aid of appealing his conviction for violating city ordinances, which resulted in a $500 fine and no imprisonment. In Scott v. Illinois, 440 U.S. 367 (1979), we concluded that an indigent defendant charged with a crime that was not punishable by imprisonment was not entitled to appointed counsel. And yet, in Lassiter, supra, we held that, in some cases, due process required provision of assistance of counsel before the termination of parental rights. The assertion that civil litigants have no right to the free transcripts that all criminal defendants enjoy is difficult to sustain in the face of our holding that some civil litigants are entitled to the assistance of counsel to which some criminal defendants are not. It is at this unsettled (and unsettling) place that the majority lays the foundation of its holding. See ante, at 120-124. The majority's solution to the "anamol[y]" that a misdemeanant receives a free transcript but no trial counsel, while a parental-rights terminee receives (sometimes) trial counsel, but no transcript, works an extension of Mayer. I 141 would answer the conundrum differently: Even if the Griffin line were sound, Mayer was an unjustified extension that should be limited to its facts, if not overruled. Unlike in Scott and Lassiter, the Court gave short shrift in Mayer to the distinction, as old as our Constitution, between crimes punishable by imprisonment and crimes punishable merely by fines. See Lassiter, supra, at 26-27; Scott, supra, at 373. Even though specific text-based constitutional protections have been withheld in cases not involving the prospect of imprisonment, the Court found the difference of no moment in Mayer. The Court reasoned that "[t]he invidiousness of the discrimination that exists when criminal procedures are made available only to those who can pay is not erased by any differences in the sentences that may be imposed." 404 U.S., at 197. We reap today what we sowed then. If requiring payment for procedures (e. g., appeals) that are not themselves required is invidious discrimination no matter what sentence results, it is difficult to imagine why it is not invidious discrimination no matter what results and no matter whether the procedures involve a criminal or civil case. See supra, at 135. To me this points up the difficulty underlying the entire Griffin line. Taking the Griffin line as a given, however, and in the absence of any obvious limiting principle, I would restrict it to the criminal appeals to which its authors, see Boddie v. Connecticut, 401 U. S., at 389 (Black, J., dissenting), sought to limit it. The distinction between criminal and civil casesif blurred at the marginshas persisted throughout the law. The distinction that the majority seeks to draw between the case we confront today and the other civil cases that we will surely face tomorrow is far more ephemeral. If all that is required to trigger the right to a free appellate transcript is that the interest at stake appear to us to be as fundamental as the interest of a convicted misdemeanant, several kinds of civil suits involving interests that seem fundamental 142 enough leap to mind. Will the Court, for example, now extend the right to a free transcript to an indigent seeking to appeal the outcome of a paternity suit?[3] To those who wish to appeal custody determinations?[4] How about persons against whom divorce decrees are entered?[5] Civil suits that arise out of challenges to zoning ordinances with an impact on families?[6] Why not foreclosure actionsor at least foreclosure 143 actions seeking to oust persons from their homes of many years?[7] The majority seeks to provide assurances that its holding will not extend beyond parental termination suits. The holdings of Santosky and Lassiter both of which involved parental terminationhave not, we are told, been applied to other areas of law. Ante, at 128. This is not comforting. Both Santosky and Lassiter are cases that determined the requirements of due process (not equal protection) in the parental rights termination area. As the Court has said countless times, the requirements of due process vary considerably with the interest involved and the action to which it is subject. It is little wonder, then, that the specific due process requirements for one sort of action are not readily transferable to others. I have my doubts that today's opinion will be so confined. In the first place, it is not clear whether it is an equal protection or a due process opinion. Moreover, the principle on which it appears to rest hardly seems capable of stemming the tide. Petitioner is permitted a free appellate transcript because the interest that underlies her civil claim compares favorably to the interest of the misdemeanant facing a $500 fine and unknown professional difficulties in Mayer v. Chicago. Under the rule announced today, I do not see how a civil litigant could constitutionally be denied a free transcript in any case that involves an interest that is arguably as important as the interest in Mayer (which would appear to include all the types of cases that I mention above, and perhaps many others).[8] What is more, it must be remembered that Griffin did not merely invent *144 the free transcript right for criminal appellants; it was also the launching pad for the discovery of a host of other rights. See, e. g., Bounds, 430 U. S., at 822 (right to prison law libraries or legal assistance); Douglas, 372 U. S., at 356 (right to free appellate counsel). I fear that the growth of Griffin in the criminal area may be mirrored in the civil area. In brushing aside the distinction between criminal and civil casesthe distinction that has constrained Griffin for 40 yearsthe Court has eliminated the last meaningful limit on the free-floating right to appellate assistance. From Mayer, an unfortunate outlier in the Griffin line, has sprung the M. L. B. line, and I have no confidence that the majority's assurances that the line starts and ends with this case will hold true. III As the majority points out, many States already provide for in forma pauperis civil appeals, with some making special allowances for parental termination cases. I do not dispute the wisdom or charity of these heretofore voluntary allocations of the various States' scarce resources. I agree that, for manyif not mostparents, the termination of their right to raise their children would be an exaction more dear than any other. It seems perfectly reasonable for States to choose to provide extra constitutional procedures to ensure that any such termination is undertaken with care. I do not agree, however, that a State that has taken the step, not required by the Constitution, of permitting appeals from termination decisions somehow violates the Constitution when it charges reasonable fees of all would-be appellants. I respectfully dissent.	Today the majority holds that the Fourteenth Amendment requires Mississippi to afford petitioner a free transcript because her civil case involves a "fundamental" right. The majority seeks to limit the reach of its holding to the type of case we confront here, one involving the termination of parental rights. I do not think, however, that the new-found constitutional right to free transcripts in civil appeals can be 130 effectively restricted to this case. The inevitable consequence will be greater demands on the States to provide free assistance to would-be appellants in all manner of civil cases involving interests that cannot, based on the test established by the majority, be distinguished from the admittedly important interest at issue here. The cases on which the majority relies, primarily cases requiring appellate assistance for indigent criminal defendants, were questionable when decided, and have, in my view, been undermined since. Even accepting those cases, however, I am of the view that the majority takes them too far. I therefore dissent. I Petitioner requests relief under both the Due Process and Equal Protection Clauses, though she does not specify how either Clause affords it. The majority accedes to petitioner's request. But, carrying forward the ambiguity in the cases on which it relies, the majority does not specify the source of the relief it grants. Those decisions are said to "reflect both equal protection and due process concerns." Ante, at 120. And, while we are told that "cases of this order `cannot be resolved by resort to easy slogans or pigeonhole analysis,' " ), the majority nonetheless acknowledges that "`[m]ost decisions in this area res[t] on an equal protection framework,' " ante, at 120 (quoting ). It then purports to "place this case within the framework established by our past decisions in this area." Ante, at 120. It is not clear to me whether the majority disavows any due process support for its holding. (Despite the murky disclaimer, the majority discusses numerous cases that squarely relied on due process considerations.) I therefore analyze petitioner's claim under both the Due Process and Equal Protection Clauses. If neither Clause affords petitioner the right to a free, civil-appeal transcript, I assume that no amalgam of the two does. 131 A We have indicated on several occasions in this century that the interest of parents in maintaining their relationships with their children is "an important interest that `undeniably warrants deference and, absent a powerful countervailing interest, protection.' " Assuming that petitioner's interest may not be impinged without due process of law, I do not think that the Due Process Clause requires the result the majority reaches. Petitioner's largest obstacle to a due process appeal gratis is our oft-affirmed view that due process does not oblige States to provide for any appeal, even from a criminal conviction. See, e. g., (noting that "a State is not required by the Federal Constitution to provide appellate courts or a right to appellate review at all" (citation omitted)); (94) ("A review by an appellate court of the final judgment in a criminal case, however grave the offence of which the accused is convicted, was not at common law and is not now a necessary element of due process of law. It is wholly within the discretion of the State to allow or not to allow such a review. A citation of authorities upon the point is unnecessary"). To be sure, we have indicated, beginning with that where an appeal is provided, States may be prohibited from erecting barriers to those unable to pay. As I described last Term in my concurring opinion in 5 U.S. 343, however, I believe that these cases are best understood as grounded in equal protection analysis, and thus make no inroads on our longstanding rule that States that accord due process in a hearing-level tribunal need not provide further review. The majority reaffirms that due process does not require an appeal. Ante, at 110, 120. Indeed, as I noted above, it 132 is not clear that the majority relies on the Due Process Clause at all. The majority does discuss, however, one case in which the Court stated its holding in terms of due process: In Boddie, the Court held violative of due process a statute that exacted fees averaging $60 from persons seeking marital dissolution. Citing the importance of the interest in ending a marriage, and the State's monopoly over the mechanisms to accomplish it, we explained that, "at a minimum" and "absent a countervailing state interest of overriding significance, persons forced to settle their claims of right and duty through the judicial process must be given a meaningful opportunity to be heard." Boddie has little to do with this case. It, "of course, was not concerned with post-hearing review." Rather, the concern in Boddie was that indigent persons were deprived of "fundamental rights" with no hearing whatsoever. Petitioner, in contrast, received not merely a hearing, but in fact enjoyed procedural protections above and beyond what our parental termination cases have required. She received both notice and a hearing before a neutral, legally trained decisionmaker. She was represented by counseleven though due process does not in every case require the appointment of counsel. See Through her attorney, petitioner was able to confront the evidence and witnesses against her. And, in accordance with the Chancery Court was required to find that petitioner's parental unfitness was proved by clear and convincing evidence. Indeed, petitioner points to no hearinglevel process to which she was entitled that she did not receive. Given the many procedural protections afforded petitioner, I have little difficulty concluding that "due process has been accorded in the tribunal of first instance." Ohio ex rel. Due process has never compelled an appeal where, as here, its rigors are satisfied by an adequate hearing. Those cases in which the Court has required States to alleviate financial obstacles to process beyond a hearingthough sometimes couched in due process termshave been based on the equal protection proposition that if the State chooses to provide for appellate review, it "`can no more discriminate on account of poverty than on account of religion, race, or color.' " (quoting ) There seems, then, no place in the Due Process Clausecertainly as an original matter, and even as construed by this Courtfor the constitutional "right" crafted by the majority today. I turn now to the other possible source: The Equal Protection Clause. B As I stated last Term in I do not think that the equal protection theory underlying the Griffin line of cases remains viable. See 5 U.S., -378. There, I expressed serious reservations as to the continuing vitality of As it did in the Court today not only adopts the equal protection theory of which was dubious ab initio and which has been undermined sincebut extends it. Thus, much of what I said in bears repeating here. In Griffin, the State of required all criminal appellants whose claims on appeal required review of a trial transcript to obtain it themselves. The plurality thought that this "discriminate[d] against some convicted defendants on account of their poverty," 351 U.S., at Justice Harlan, in dissent, perceived a troubling shift in this Court's equal protection jurisprudence. The Court, he noted, did not "dispute either the necessity for a bill of exceptions 134 or the reasonableness of the general requirement that the trial transcript, if used in its preparation, be paid for by the appealing party." But, because requiring each would-be appellant to bear the costs of appeal hit the poor harder, the majority divined "an invidious classification between the `rich' and the `poor.' " Disputing this early manifestation of the "disparate impact" theory of equal protection, Justice Harlan argued: "[N]o economic burden attendant upon the exercise of a privilege bears equally upon all, and in other circumstances the resulting differentiation is not treated as an invidious classification by the State, even though discrimination against `indigents' by name would be unconstitutional." Justice Harlan offered the example of a state university that conditions an education on the payment of tuition. If charging tuition did not create a discriminatory classification, then, Justice Harlan wondered, how did any other reasonable exaction by a State for a service it provides? "The resulting classification would be invidious in all cases, and an invidious classification offends equal protection regardless of the seriousness of the consequences." The issue in Griffin was not whether had made a reasonable classification, but whether the State acted reasonably in failing to remove disabilities that existed wholly independently of state action. To Justice Harlan this was not an inquiry typically posed under the Equal Protection Clause. In Justice Harlan again confronted what Justice Clark termed the Court's "fetish for indigency," 9 Regarding a law limiting the appointment of appellate counsel for indigents, Justice Harlan pointed out that "[l]aws such as these do not deny equal protection to the less fortunate for one essential reason: the Equal Protection Clause does not impose on the States `an affirmative duty to lift the handicaps 135 flowing from differences in economic circumstances.' " Justice Harlan's views were accepted by the Court in in which "[w]e rejected a disparate impact theory of the Equal Protection Clause altogether." We spurned the claim that "a law, neutral on its face and serving ends otherwise within the power of government to pursue, is invalid under the Equal Protection Clause simply because it may affect a greater proportion of one race than of another." 426 U.S., 2. Absent proof of discriminatory purpose, official action did not violate the Fourteenth Amendment "solely because it has a racially disparate impact." Hearkening back to Justice Harlan's dissents in Griffin and we recognized that "[a] rule that a statute designed to serve neutral ends is nevertheless invalid, absent compelling justification, if in practice it benefits or burdens one race more than another would be far reaching and would raise serious questions about, and perhaps invalidate, a whole range of tax, welfare, public service, regulatory, and licensing statutes that may be more burdensome to the poor and to the average black than to the more affluent white." 426 U.S., 8 The lesson of is that the Equal Protection Clause shields only against purposeful discrimination: A disparate impact, even upon members of a racial minority, the classification of which we have been most suspect, does not violate equal protection. The Clause is not a panacea for perceived social or economic inequity; it seeks to "guarante[e] equal laws, not equal results." Personnel Administrator of 3 Since we have regularly required more of an equal protection claimant than a showing that state action has a 136 harsher effect on him or her than on others. See, e. g., ("The equal protection component of the Fifth Amendment prohibits only purposeful discrimination, and when a facially neutral federal statute is challenged on equal protection grounds, it is incumbent upon the challenger to prove that Congress selected or reaffirmed a particular course of action at least in part because of, not merely in spite of, its adverse effects upon an identifiable group" (internal quotation marks and citations omitted)); see also 5 U. S., (citing cases). Our frequent pronouncements that the Fourteenth Amendment is not violated by disparate impact have spanned challenges to statutes alleged to affect disproportionately members of one race, members of one sex, Personnel Administrator v. and poor persons seeking to exercise protected rights, The majority attempts to avoid what I regard as the irresistible force of the line of cases, but I am unconvinced by the effort. The majority states that persons in cases like those cited above "sought state aid to subsidize their privately initiated action or to alleviate the consequences of differences in economic circumstances that existed apart from state action." Ante, at 125. Petitioner, in apparent contrast, "is endeavoring to defend against the State's destruction of her family bonds, and to resist the brand associated with a parental unfitness adjudication." She, "[l]ike a defendant resisting criminal conviction, seeks to be spared from the State's devastatingly adverse action." But, also like a defendant resisting criminal conviction, petitioner is not constitutionally entitled to post-trial process. See ante, at 110, 120. She defended against the "destruction of her family bonds" in the Chancery Court hearing at which she was accorded all the process this Court has required of the States in parental termination cases. She now desires "state aid to subsidize [her] privately initiated" 137 appealan appeal that neither petitioner nor the majority claims Mississippi is required to provideto overturn the determination that resulted from that hearing. I see no principled difference between a facially neutral rule that serves in some cases to prevent persons from availing themselves of state employment, or a state-funded education, or a state-funded abortioneach of which the State may, but is not required to, provideand a facially neutral rule that prevents a person from taking an appeal that is available only because the State chooses to provide it. Nor does v. a case decided six years earlier, operate to limit was yet another manifestation of the "equalizing" notion of equal protection that this Court began to question in See To the extent its reasoning survives I think that is distinguishable. Petitioner was incarcerated beyond the maximum statutory sentence because he was unable to pay the fine imposed as part of his sentence. We found the law that permitted prisoners to avoid extrastatutory imprisonment only by paying their fines to violate the Equal Protection Clause. Even though it was "`nondiscriminatory on its face,' " the law "work[ed] an invidious discrimination" as to and all other indigents because they could not afford to pay their fines. 399 U.S., 2. The majority concludes that the sanctions involved in are analogous to "the Mississippi prescription here at issue," in that both do not have merely a disparate impact, "they apply to all indigents and do not reach anyone outside that class." Ante, at 1. Even assuming that ' imprisonment gave rise to an equal protection violation, however, M. L. B.'s circumstances are not comparable. M. L. B.'s parental rights were terminatedthe analog to ' extended imprisonmentbecause the Chancery Court found, after a hearing, that she was unfit to remain her children's mother, not because she was indigent. Her indigency only prevented her from taking 138 advantage of procedures above and beyond those required by the Constitutionin the same way that indigency frequently prevents persons from availing themselves of a variety of state services.[1] The Griffin line of cases ascribed toone might say announcedan equalizing notion of the Equal Protection Clause that would, I think, have startled the Fourteenth Amendment's Framers. In those cases, the Court did not find, nor did it seek, any purposeful discrimination on the part of the state defendants. That their statutes had disproportionate effect on poor persons was sufficient for us to find a constitutional violation. In among other cases, we began to recognize the potential mischief of a disparate impact theory writ large, and endeavored to contain it. In this case, I would continue that enterprise. Mississippi's requirement of prepaid transcripts in civil appeals seeking to contest the sufficiency of the evidence adduced at trial is facially neutral; it creates no classification. The transcript rule reasonably obliges would-be appellants to bear the costs of availing themselves of a service that the State chooses, but is not constitutionally required, to provide.[2] Any adverse 139 impact that the transcript requirement has on any person seeking to appeal arises not out of the State's action, but out of factors entirely unrelated to it. II If this case squarely presented the question, I would be inclined to vote to overrule Griffin and its progeny. Even were I convinced that the cases on which the majority today relies ought to be retained, I could not agree with the majority's extension of them. The interest at stake in this case differs in several important respects from that at issue in cases such as Griffin. Petitioner's interest in maintaining a relationship with her children is the subject of a civil, not criminal, action. While certain civil suits may tend at the margin toward criminal cases, and criminal cases may likewise drift toward civil suits, the basic distinction between the two finds root in the Constitution and has largely retained its vitality in our jurisprudence. In dissent in Justice Black stated that "in Griffin the Court studiously and carefully refrained from saying one word or one sentence suggesting that the rule there announced to control rights of criminal defendants would control in the quite different field of civil cases." The Constitution provides for a series of protections of the unadorned liberty interest at stake in criminal proceedings. These express protections include the Fifth Amendment's guarantee of grand jury indictment, and protection against double jeopardy and selfincrimination; the Sixth Amendment's guarantees of a speedy and public jury trial, of the ability to confront witnesses, and of compulsory process and assistance of counsel; and the Eighth Amendment's protections against excessive bail and fines, and against cruel and unusual punishment. This Court has given content to these textual protections, and has identified others contained in the Due Process Clause. These protections are not available to the typical 140 civil litigant. Even where the interest in a civil suit has been labeled "fundamental," as with the interest in parental termination suits, the protections extended pale by comparison. A party whose parental rights are subject to termination is entitled to appointed counsel, but only in certain circumstances. See -32. His or her rights cannot be terminated unless the evidence meets a standard higher than the preponderance standard applied in the typical civil suit, but the standard is still lower than that required before a guilty verdict. See 455 U. S., at -770. That said, it is true enough that civil and criminal cases do not always stand in bold relief to one another. 404 U.S. 9 marks a particularly discomfiting point along the border between the civil and criminal areas. Based on Griffin, the Court determined there that an indigent defendant had a constitutional right to a free transcript in aid of appealing his conviction for violating city ordinances, which resulted in a $500 fine and no imprisonment. In v. we concluded that an indigent defendant charged with a crime that was not punishable by imprisonment was not entitled to appointed counsel. And yet, in we held that, in some cases, due process required provision of assistance of counsel before the termination of parental rights. The assertion that civil litigants have no right to the free transcripts that all criminal defendants enjoy is difficult to sustain in the face of our holding that some civil litigants are entitled to the assistance of counsel to which some criminal defendants are not. It is at this unsettled (and unsettling) place that the majority lays the foundation of its holding. See ante, at 120-124. The majority's solution to the "anamol[y]" that a misdemeanant receives a free transcript but no trial counsel, while a parental-rights terminee receives (sometimes) trial counsel, but no transcript, works an extension of Mayer. I 141 would answer the conundrum differently: Even if the Griffin line were sound, Mayer was an unjustified extension that should be limited to its facts, if not overruled. Unlike in and the Court gave short shrift in Mayer to the distinction, as old as our Constitution, between crimes punishable by imprisonment and crimes punishable merely by fines. See at 26-; Even though specific text-based constitutional protections have been withheld in cases not involving the prospect of imprisonment, the Court found the difference of no moment in Mayer. The Court reasoned that "[t]he invidiousness of the discrimination that exists when criminal procedures are made available only to those who can pay is not erased by any differences in the sentences that may be imposed." We reap today what we sowed then. If requiring payment for procedures (e. g., appeals) that are not themselves required is invidious discrimination no matter what sentence results, it is difficult to imagine why it is not invidious discrimination no matter what results and no matter whether the procedures involve a criminal or civil case. See To me this points up the difficulty underlying the entire Griffin line. Taking the Griffin line as a given, however, and in the absence of any obvious limiting principle, I would restrict it to the criminal appeals to which its authors, see sought to limit it. The distinction between criminal and civil casesif blurred at the marginshas persisted throughout the law. The distinction that the majority seeks to draw between the case we confront today and the other civil cases that we will surely face tomorrow is far more ephemeral. If all that is required to trigger the right to a free appellate transcript is that the interest at stake appear to us to be as fundamental as the interest of a convicted misdemeanant, several kinds of civil suits involving interests that seem fundamental 142 enough leap to mind. Will the Court, for example, now extend the right to a free transcript to an indigent seeking to appeal the outcome of a paternity suit?[3] To those who wish to appeal custody determinations?[4] How about persons against whom divorce decrees are entered?[5] Civil suits that arise out of challenges to zoning ordinances with an impact on families?[6] Why not foreclosure actionsor at least foreclosure 143 actions seeking to oust persons from their homes of many years?[7] The majority seeks to provide assurances that its holding will not extend beyond parental termination suits. The holdings of Santosky and both of which involved parental terminationhave not, we are told, been applied to other areas of law. Ante, at 128. This is not comforting. Both Santosky and are cases that determined the requirements of due process (not equal protection) in the parental rights termination area. As the Court has said countless times, the requirements of due process vary considerably with the interest involved and the action to which it is subject. It is little wonder, then, that the specific due process requirements for one sort of action are not readily transferable to others. I have my doubts that today's opinion will be so confined. In the first place, it is not clear whether it is an equal protection or a due process opinion. Moreover, the principle on which it appears to rest hardly seems capable of stemming the tide. Petitioner is permitted a free appellate transcript because the interest that underlies her civil claim compares favorably to the interest of the misdemeanant facing a $500 fine and unknown professional difficulties in Under the rule announced today, I do not see how a civil litigant could constitutionally be denied a free transcript in any case that involves an interest that is arguably as important as the interest in Mayer (which would appear to include all the types of cases that I mention above, and perhaps many others).[8] What is more, it must be remembered that Griffin did not merely invent 144 the free transcript right for criminal appellants; it was also the launching pad for the discovery of a host of other rights. See, e. g., ; 372 U. S., 6 I fear that the growth of Griffin in the criminal area may be mirrored in the civil area. In brushing aside the distinction between criminal and civil casesthe distinction that has constrained Griffin for 40 yearsthe Court has eliminated the last meaningful limit on the free-floating right to appellate assistance. From Mayer, an unfortunate outlier in the Griffin line, has sprung the M. L. B. line, and I have no confidence that the majority's assurances that the line starts and ends with this case will hold true. III As the majority points out, many States already provide for in forma pauperis civil appeals, with some making special allowances for parental termination cases. I do not dispute the wisdom or charity of these heretofore voluntary allocations of the various States' scarce resources. I agree that, for manyif not mostparents, the termination of their right to raise their children would be an exaction more dear than any other. It seems perfectly reasonable for States to choose to provide extra constitutional procedures to ensure that any such termination is undertaken with care. I do not agree, however, that a State that has taken the step, not required by the Constitution, of permitting appeals from termination decisions somehow violates the Constitution when it charges reasonable fees of all would-be appellants. I respectfully dissent.	1,889
Justice Scalia	majority	false	Hunt, Governor of North Carolina v. Cromartie	2001-04-18	null	https://www.courtlistener.com/opinion/118421/hunt-governor-of-north-carolina-v-cromartie/	https://www.courtlistener.com/api/rest/v3/clusters/118421/	2,001	2000-041	2	5	4	1 This case presents the question whether private individuals may sue to enforce disparate-impact regulations promulgated under Title VI of the Civil Rights Act of 1964. 2 * The Alabama Department of Public Safety (Department), of which petitioner James Alexander is the Director, accepted grants of financial assistance from the United States Department of Justice (DOJ) and Department of Transportation (DOT) and so subjected itself to the restrictions of Title VI of the Civil Rights Act of 1964, 78 Stat. 252, as amended, 42 U.S.C. 2000d et seq. Section 601 of that Title provides that no person shall, "on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity" covered by Title VI. 42 U.S.C. 2000d. Section 602 authorizes federal agencies "to effectuate the provisions of [601] ... by issuing rules, regulations, or orders of general applicability," 42 U.S.C. 2000d-1, and the DOJ in an exercise of this authority promulgated a regulation forbidding funding recipients to "utilize criteria or methods of administration which have the effect of subjecting individuals to discrimination because of their race, color, or national origin ... ." 28 CFR 42.104(b)(2) (1999). See also 49 CFR 21.5(b)(2) (2000) (similar DOT regulation). 3 The State of Alabama amended its Constitution in 1990 to declare English "the official language of the state of Alabama." Amdt. 509. Pursuant to this provision and, petitioners have argued, to advance public safety, the Department decided to administer state driver's license examinations only in English. Respondent Sandoval, as representative of a class, brought suit in the United States District Court for the Middle District of Alabama to enjoin the English-only policy, arguing that it violated the DOJ regulation because it had the effect of subjecting non-English speakers to discrimination based on their national origin. The District Court agreed. It enjoined the policy and ordered the Department to accommodate non-English speakers. Sandoval v. Hagan, 7 F. Supp. 2d 1234 (1998). Petitioners appealed to the Court of Appeals for the Eleventh Circuit, which affirmed. Sandoval v. Hagan, 197 F.3d 484 (1999). Both courts rejected petitioners' argument that Title VI did not provide respondents a cause of action to enforce the regulation. 4 We do not inquire here whether the DOJ regulation was authorized by 602, or whether the courts below were correct to hold that the English-only policy had the effect of discriminating on the basis of national origin. The petition for writ of certiorari raised, and we agreed to review, only the question posed in the first paragraph of this opinion: whether there is a private cause of action to enforce the regulation. 530 U.S. 1305 (2000). II 5 Although Title VI has often come to this Court, it is fair to say (indeed, perhaps an understatement) that our opinions have not eliminated all uncertainty regarding its commands. For purposes of the present case, however, it is clear from our decisions, from Congress's amendments of Title VI, and from the parties' concessions that three aspects of Title VI must be taken as given. First, private individuals may sue to enforce 601 of Title VI and obtain both injunctive relief and damages. In Cannon v. University of Chicago, 441 U.S. 677 (1979), the Court held that a private right of action existed to enforce Title IX of the Education Amendments of 1972, 86 Stat. 373, as amended, 20 U.S.C. 1681 et seq. The reasoning of that decision embraced the existence of a private right to enforce Title VI as well. "Title IX," the Court noted, "was patterned after Title VI of the Civil Rights Act of 1964." 441 U.S., at 694. And, "[i]n 1972 when Title IX was enacted, the [parallel] language in Title VI had already been construed as creating a private remedy." Id., at 696. That meant, the Court reasoned, that Congress had intended Title IX, like Title VI, to provide a private cause of action. Id., at 699, 703, 710-711. Congress has since ratified Cannon's holding. Section 1003 of the Rehabilitation Act Amendments of 1986, 100 Stat. 1845, 42 U.S.C. 2000d-7, expressly abrogated States' sovereign immunity against suits brought in federal court to enforce Title VI and provided that in a suit against a State "remedies (including remedies both at law and in equity) are available ... to the same extent as such remedies are available ... in the suit against any public or private entity other than a State," 2000d-7(a)(2). We recognized in Franklin v. Gwinnett County Public Schools, 503 U.S. 60 (1992), that 2000d-7 "cannot be read except as a validation of Cannon's holding." Id., at 72; see also id., at 78 (Scalia, J., concurring in judgment) (same). It is thus beyond dispute that private individuals may sue to enforce 601. 6 Second, it is similarly beyond dispute-and no party disagrees-that 601 prohibits only intentional discrimination. In Regents of Univ. of Cal. v. Bakke, 438 U.S. 265 (1978), the Court reviewed a decision of the California Supreme Court that had enjoined the University of California Medical School from "according any consideration to race in its admissions process." Id., at 272. Essential to the Court's holding reversing that aspect of the California court's decision was the determination that 601 "proscribe[s] only those racial classifications that would violate the Equal Protection Clause or the Fifth Amendment." Id., at 287 (opinion of Powell, J.); see also id., at 325, 328, 352 (opinion of Brennan, White, Marshall, and Blackmun, JJ.). In Guardians Assn. v. Civil Serv. Comm'n of New York City, 463 U.S. 582 (1983), the Court made clear that under Bakke only intentional discrimination was forbidden by 601. 463 U.S., at 610-611 (Powell, J., joined by Burger, C. J., and Rehnquist, J., concurring in judgment); id., at 612 (O'Connor, J., concurring in judgment); id., at 642 (Stevens, J., joined by Brennan and Blackmun, JJ., dissenting). What we said in Alexander v. Choate, 469 U.S. 287, 293 (1985), is true today: "Title VI itself directly reach[es] only instances of intentional discrimination."1 7 Third, we must assume for purposes of deciding this case that regulations promulgated under 602 of Title VI may validly proscribe activities that have a disparate impact on racial groups, even though such activities are permissible under 601. Though no opinion of this Court has held that, five Justices in Guardians voiced that view of the law at least as alternative grounds for their decisions, see 463 U.S., at 591-592 (opinion of White, J.); id., at 623, n. 15 (Marshall, J., dissenting); id., at 643-645 (Stevens, J., joined by Brennan and Blackmun, JJ., dissenting), and dictum in Alexander v. Choate is to the same effect, see 469 U.S., at 293, 295, n. 11. These statements are in considerable tension with the rule of Bakke and Guardians that 601 forbids only intentional discrimination, see, e.g., Guardians Assn. v. Civil Serv. Comm'n of New York City, supra, at 612-613 (O'Connor, J., concurring in judgment), but petitioners have not challenged the regulations here. We therefore assume for the purposes of deciding this case that the DOJ and DOT regulations proscribing activities that have a disparate impact on the basis of race are valid. 8 Respondents assert that the issue in this case, like the first two described above, has been resolved by our cases. To reject a private cause of action to enforce the disparate-impact regulations, they say, we would "[have] to ignore the actual language of Guardians and Cannon." Brief for Respondents 13. The language in Cannon to which respondents refer does not in fact support their position, as we shall discuss at length below, see infra, at 12-13. But in any event, this Court is bound by holdings, not language. Cannon was decided on the assumption that the University of Chicago had intentionally discriminated against petitioner. See 441 U.S., at 680 (noting that respondents "admitted arguendo" that petitioner's "application for admission to medical school was denied by the respondents because she is a woman"). It therefore held that Title IX created a private right of action to enforce its ban on intentional discrimination, but had no occasion to consider whether the right reached regulations barring disparate-impact discrimination.2 In Guardians, the Court held that private individuals could not recover compensatory damages under Title VI except for intentional discrimination. Five Justices in addition voted to uphold the disparate-impact regulations (four would have declared them invalid, see 463 U.S., at 611, n. 5 (Powell, J., concurring in judgment); id., at 612-614 (O'Connor, J., concurring in judgment)), but of those five, three expressly reserved the question of a direct private right of action to enforce the regulations, saying that "[w]hether a cause of action against private parties exists directly under the regulations ... [is a] questio[n] that [is] not presented by this case." Id., at 645, n. 18 (Stevens, J., dissenting).3 Thus, only two Justices had cause to reach the issue that respondents say the "actual language" of Guardians resolves. Neither that case,4 nor any other in this Court, has held that the private right of action exists. 9 Nor does it follow straightaway from the three points we have taken as given that Congress must have intended a private right of action to enforce disparate-impact regulations. We do not doubt that regulations applying 601's ban on intentional discrimination are covered by the cause of action to enforce that section. Such regulations, if valid and reasonable, authoritatively construe the statute itself, see NationsBank of N. C., N. A. v. Variable Annuity Life Ins. Co., 513 U.S. 251, 257 (1995); Chevron U.S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843-844 (1984), and it is therefore 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. The many cases that respondents say have "assumed" that a cause of action to enforce a statute includes one to enforce its regulations illustrate (to the extent that cases in which an issue was not presented can illustrate anything) only this point; each involved regulations of the type we have just described, as respondents conceded at oral argument, Tr. of Oral Arg. 33. See National Collegiate Athletic Assn. v. Smith, 525 U.S. 459, 468 (1999) (regulation defining who is a "recipient" under Title IX); School Bd. of Nassau Cty. v. Arline, 480 U.S. 273, 279-281 (1987) (regulations defining the terms "physical impairment" and "major life activities" in 504 of the Rehabilitation Act of 1973); Bazemore v. Friday, 478 U.S. 385, 408-409 (1986) (White, J., joined by four other Justices, concurring) (regulation interpreting Title VI to require "affirmative action" remedying effects of intentional discrimination); Alexander v. Choate, 469 U.S., at 299, 309 (regulations clarifying what sorts of disparate impacts upon the handicapped were covered by 504 of the Rehabilitation Act of 1973, which the Court assumed included some such impacts). Our decision in Lau v. Nichols, 414 U.S. 563 (1974), falls within the same category. The Title VI regulations at issue in Lau, similar to the ones at issue here, forbade funding recipients to take actions which had the effect of discriminating on the basis of race, color, or national origin. Id., at 568. Unlike our later cases, however, the Court in Lau interpreted 601 itself to proscribe disparate-impact discrimination, saying that it "rel[ied] solely on 601 ... to reverse the Court of Appeals," id., at 566, and that the disparate-impact regulations simply "[made] sure that recipients of federal aid ... conduct[ed] any federally financed projects consistently with 601," id., at 567.5 10 We must face now the question avoided by Lau, because we have since rejected Lau's interpretation of 601 as reaching beyond intentional discrimination. See supra, at 4. It is clear now that the disparate-impact regulations do not simply apply 601-since they indeed forbid conduct that 601 permits-and therefore clear that the private right of action to enforce 601 does not include a private right to enforce these regulations. See Central Bank of Denver, N. A. v. First Interstate Bank of Denver, N. A., 511 U.S. 164, 173 (1994) (a "private plaintiff may not bring a [suit based on a regulation] against a defendant for acts not prohibited by the text of [the statute]"). That right must come, if at all, from the independent force of 602. As stated earlier, we assume for purposes of this decision that 602 confers the authority to promulgate disparate-impact regulations6; the question remains whether it confers a private right of action to enforce them. If not, we must conclude that a failure to comply with regulations promulgated under 602 that is not also a failure to comply with 601 is not actionable. 11 Implicit in our discussion thus far has been a particular understanding of the genesis of private causes of action. Like substantive federal law itself, private rights of action to enforce federal law must be created by Congress. Touche Ross & Co. v. Redington, 442 U.S. 560, 578 (1979) (remedies available are those "that Congress enacted into law"). The judicial task is to interpret the statute Congress has passed to determine whether it displays an intent to create not just a private right but also a private remedy. Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 15 (1979). Statutory intent on this latter point is determinative. See, e.g., Virginia Bankshares, Inc. v. Sandberg, 501 U.S. 1083, 1102 (1991); Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U.S. 804, 812, n. 9 (1986) (collecting cases). Without it, a cause of action does not exist and courts may not create one, no matter how desirable that might be as a policy matter, or how compatible with the statute. See, e.g., Massachusetts Mut. Life Ins. Co. v. Russell, 473 U.S. 134, 145, 148 (1985); Transamerica Mortgage Advisors, Inc. v. Lewis, supra, at 23; Touche Ross & Co. v. Redington, supra, at 575-576. "Raising up causes of action where a statute has not created them may be a proper function for common-law courts, but not for federal tribunals." Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350, 365 (1991) (Scalia, J., concurring in part and concurring in judgment). 12 Respondents would have us revert in this case to the understanding of private causes of action that held sway 40 years ago when Title VI was enacted. That understanding is captured by the Court's statement in J. I. Case Co. v. Borak, 377 U.S. 426, 433 (1964), that "it is the duty of the courts to be alert to provide such remedies as are necessary to make effective the congressional purpose" expressed by a statute. We abandoned that understanding in Cort v. Ash, 422 U.S. 66, 78 (1975)-which itself interpreted a statute enacted under the ancien regime-and have not returned to it since. Not even when interpreting the same Securities Exchange Act of 1934 that was at issue in Borak have we applied Borak's method for discerning and defining causes of action. See Central Bank of Denver, N. A. v. First Interstate Bank of Denver, N. A., supra, at 188; Musick, Peeler & Garrett v. Employers Ins. of Wausau, 508 U.S. 286, 291-293 (1993); Virginia Bankshares, Inc. v. Sandberg, supra, at 1102-1103; Touche Ross & Co. v. Redington, supra, at 576-578. Having sworn off the habit of venturing beyond Congress's intent, we will not accept respondents' invitation to have one last drink. 13 Nor do we agree with the Government that our cases interpreting statutes enacted prior to Cort v. Ash have given "dispositive weight" to the "expectations" that the enacting Congress had formed "in light of the 'contemporary legal context.' " Brief for United States 14. Only three of our legion implied-right-of-action cases have found this sort of "contemporary legal context" relevant, and two of those involved Congress's enactment (or reenactment) of the verbatim statutory text that courts had previously interpreted to create a private right of action. See Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U.S. 353, 378-379 (1982); Cannon v. University of Chicago, 441 U.S., at 698-699. In the third case, this sort of "contemporary legal context" simply buttressed a conclusion independently supported by the text of the statute. See Thompson v. Thompson, 484 U.S. 174 (1988). We have never accorded dispositive weight to context shorn of text. In determining whether statutes create private rights of action, as in interpreting statutes generally, see Blatchford v. Native Village of Noatak, 501 U.S. 775, 784 (1991), legal context matters only to the extent it clarifies text. 14 We therefore begin (and find that we can end) our search for Congress's intent with the text and structure of Title VI.7 Section 602 authorizes federal agencies "to effectuate the provisions of [601] ... by issuing rules, regulations, or orders of general applicability." 42 U.S.C. 2000d-1. It is immediately clear that the "rights-creating" language so critical to the Court's analysis in Cannon of 601, see 441 U.S., at 690 n. 13, is completely absent from 602. Whereas 601 decrees that "[n]o person ... shall ... be subjected to discrimination," 42 U.S.C. 2000d the text of 602 provides that "[e]ach Federal department and agency ... is authorized and directed to effectuate the provisions of [601]," 42 U.S.C. 2000d-1. Far from displaying congressional intent to create new rights, 602 limits agencies to "effectuat[ing]" rights already created by 601. And the focus of 602 is twice removed from the individuals who will ultimately benefit from Title VI's protection. Statutes that focus on the person regulated rather than the individuals protected create "no implication of an intent to confer rights on a particular class of persons." California v. Sierra Club, 451 U.S. 287, 294 (1981). Section 602 is yet a step further removed: it focuses neither on the individuals protected nor even on the funding recipients being regulated, but on the agencies that will do the regulating. Like the statute found not to create a right of action in Universities Research Assn., Inc. v. Coutu, 450 U.S. 754 (1981), 602 is "phrased as a directive to federal agencies engaged in the distribution of public funds," id., at 772. When this is true, "[t]here [is] far less reason to infer a private remedy in favor of individual persons," Cannon v. University of Chicago, supra, at 690-691. So far as we can tell, this authorizing portion of 602 reveals no congressional intent to create a private right of action. 15 Nor do the methods that 602 goes on to provide for enforcing its authorized regulations manifest an intent to create a private remedy; if anything, they suggest the opposite. Section 602 empowers agencies to enforce their regulations either by terminating funding to the "particular program, or part thereof," that has violated the regulation or "by any other means authorized by law," 42 U.S.C. 2000d-1. No enforcement action may be taken, however, "until the department or agency concerned has advised the appropriate person or persons of the failure to comply with the requirement and has determined that compliance cannot be secured by voluntary means." Ibid. And every agency enforcement action is subject to judicial review. 2000d-2. If an agency attempts to terminate program funding, still more restrictions apply. The agency head must "file with the committees of the House and Senate having legislative jurisdiction over the program or activity involved a full written report of the circumstances and the grounds for such action." 2000d-1. And the termination of funding does not "become effective until thirty days have elapsed after the filing of such report." Ibid. Whatever these elaborate restrictions on agency enforcement may imply for the private enforcement of rights created outside of 602, compare Cannon v. University of Chicago, supra, at 706, n. 41, 712, n. 49; Regents of Univ. of Cal. v. Bakke, 438 U.S., at 419, n. 26 (Stevens, J., concurring in judgment in part and dissenting in part), with Guardians Assn. v. Civil Serv. Comm'n of New York City, 463 U.S., at 609-610 (Powell, J., concurring in judgment); Regents of Univ. of Cal. v. Bakke, supra, at 382-383 (opinion of White, J.), they tend to contradict a congressional intent to create privately enforceable rights through 602 itself. The express provision of one method of enforcing a substantive rule suggests that Congress intended to preclude others. See, e.g., Karahalios v. Federal Employees, 489 U.S. 527, 533 (1989); Northwest Airlines, Inc. v. Transport Workers, 451 U.S. 77, 93-94 (1981); Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S., at 19-20. Sometimes the suggestion is so strong that it precludes a finding of congressional intent to create a private right of action, even though other aspects of the statute (such as language making the would-be plaintiff "a member of the class for whose benefit the statute was enacted") suggest the contrary. Massachusetts Mut. Life Ins. Co. v. Russell, 473 U.S., at 145; see id., at 146-147. And as our Rev. Stat. 1979, 42 U.S.C. 1983 cases show, some remedial schemes foreclose a private cause of action to enforce even those statutes that admittedly create substantive private rights. See, e.g., Middlesex County Sewerage Authority v. National Sea Clammers Assn., 453 U.S. 1, 19-20 (1981). In the present case, the claim of exclusivity for the express remedial scheme does not even have to overcome such obstacles. The question whether 602's remedial scheme can overbear other evidence of congressional intent is simply not presented, since we have found no evidence anywhere in the text to suggest that Congress intended to create a private right to enforce regulations promulgated under 602. 16 Both the Government and respondents argue that the regulations contain rights-creating language and so must be privately enforceable, see Brief for United States 19-20; Brief for Respondents 31, but that argument skips an analytical step. Language in a regulation may invoke a private right of action that Congress through statutory text created, but it may not create a right that Congress has not. Touche Ross & Co. v. Redington, 442 U.S., at 577, n. 18 ("[T]he language of the statute and not the rules must control"). Thus, when a statute has provided a general authorization for private enforcement of regulations, it may perhaps be correct that the intent displayed in each regulation can determine whether or not it is privately enforceable. But it is most certainly incorrect to say that language in a regulation can conjure up a private cause of action that has not been authorized by Congress. Agencies may play the sorcerer's apprentice but not the sorcerer himself. 17 The last string to respondents' and the Government's bow is their argument that two amendments to Title VI "ratified" this Court's decisions finding an implied private right of action to enforce the disparate-impact regulations. See Rehabilitation Act Amendments of 1986, 1003, 42 U.S.C. 2000d-7; Civil Rights Restoration Act of 1987, 6, 102 Stat. 31, 42 U.S.C. 2000d-4a. One problem with this argument is that, as explained above, none of our decisions establishes (or even assumes) the private right of action at issue here, see supra, at 5-8, which is why in Guardians three Justices were able expressly to reserve the question. See 463 U.S., at 645, n. 18 (Stevens, J., dissenting). Incorporating our cases in the amendments would thus not help respondents. Another problem is that the incorporation claim itself is flawed. Section 1003 of the Rehabilitation Act Amendments of 1986, on which only respondents rely, by its terms applies only to suits "for a violation of a statute," 42 U.S.C. 2000d-7(a)(2) (emphasis added). It therefore does not speak to suits for violations of regulations that go beyond the statutory proscription of 601. Section 6 of the Civil Rights Restoration Act of 1987 is even less on point. That provision amends Title VI to make the term "program or activity" cover larger portions of the institutions receiving federal financial aid than it had previously covered, see Grove City College v. Bell, 465 U.S. 555 (1984). It is impossible to understand what this has to do with implied causes of action-which is why we declared in Franklin v. Gwinnett County Public Schools, 503 U.S., at 73, that 6 did not "in any way alte[r] the existing rights of action and the corresponding remedies permissible under ... Title VI." Respondents point to Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U.S., at 381-382, which inferred congressional intent to ratify lower court decisions regarding a particular statutory provision when Congress comprehensively revised the statutory scheme but did not amend that provision. But we recently criticized Curran's reliance on congressional inaction, saying that "[a]s a general matter ... [the] argumen[t] deserve[s] little weight in the interpretive process." Central Bank of Denver, N. A. v. First Interstate Bank of Denver, N. A., 511 U.S., at 187. And when, as here, Congress has not comprehensively revised a statutory scheme but has made only isolated amendments, we have spoken more bluntly: "It is 'impossible to assert with any degree of assurance that congressional failure to act represents' affirmative congressional approval of the Court's statutory interpretation." Patterson v. McLean Credit Union, 491 U.S. 164, 175, n. 1 (1989) (quoting Johnson v. Transportation Agency, Santa Clara Cty., 480 U.S. 616, 671-672 (1987) (Scalia, J., dissenting)). 18 Neither as originally enacted nor as later amended does Title VI display an intent to create a freestanding private right of action to enforce regulations promulgated under 602.8 We therefore hold that no such right of action exists. Since we reach this conclusion applying our standard test for discerning private causes of action, we do not address petitioners' additional argument that implied causes of action against States (and perhaps nonfederal state actors generally) are inconsistent with the clear statement rule of Pennhurst State School and Hospital v. Halderman, 451 U.S. 1 (1981). See Davis v. Monroe County Bd. of Ed., 526 U.S. 629, 656-657, 684-685 (1999) (Kennedy, J., dissenting). 19 The judgment of the Court of Appeals is reversed. 20 It is so ordered. NOTES: 1 Since the parties do not dispute this point, it is puzzling to see Justice Stevens go out of his way to disparage the decisions in Regents of Univ. of Cal. v. Bakke, 438 U.S. 265 (1978), and Guardians Assn. v. Civil Serv. Comm'n of New York City, 463 U.S. 582 (1983), as "somewhat haphazard," post, at 16, particularly since he had already accorded stare decisis effect to the former 18 years ago, see Guardians, 463 U.S., at 639-642 (dissenting opinion), and since he participated in creating the latter, see ibid. Nor does Justice Stevens' reliance on Chevron U.S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), see post, at 17-18, explain his aboutface, since he expressly reaffirms, see post, at 17-18, n. 18, the settled principle that decisions of this Court declaring the meaning of statutes prior to Chevron need not be reconsidered after Chevron in light of agency regulations that were already in force when our decisions were issued, Lechmere, Inc. v. NLRB, 502 U.S. 527, 536-537 (1992); Maislin Industries, U.S., Inc. v. Primary Steel, Inc., 497 U.S. 116, 131 (1990); see also Sullivan v. Everhart, 494 U.S. 83, 103-104, n. 6 (1990) (Stevens, J., dissenting) ("It is, of course, of no importance that [an opinion] predates Chevron ... . As we made clear in Chevron, the interpretive maxims summarized therein were 'well-settled principles' "). 2 Although the dissent acknowledges that "the breadth of [Cannon's] precedent is a matter upon which reasonable jurists may differ," post, at 21, it disagrees with our reading of Cannon's holding because it thinks the distinction we draw between disparate-impact and intentional discrimination was "wholly foreign" to that opinion, see post, at 5. Cannon, however, was decided less than one year after the Court in Bakke had drawn precisely that distinction with respect to Title VI, see supra, at 4, and it is absurd to think that Cannon meant, without discussion, to ban under Title IX the very disparate-impact discrimination that Bakke said Title VI permitted. The only discussion in Cannon of Title IX's scope is found in Justice Powell's dissenting opinion, which simply assumed that the conclusion that Title IX would be limited to intentional discrimination was "forgone in light of our holding" in Bakke. Cannon v. University of Chicago, 441 U.S. 677, 748, n. 19 (1979). The dissent's additional claim that Cannon provided a private right of action for "all the discrimination prohibited by the regulatory scheme contained in Title IX," post, at 5, n. 4 (emphasis added), simply begs the question at the heart of this case, which is whether a right of action to enforce disparate-impact regulations must be independently identified, see infra, at 7-10. 3 We of course accept the statement by the author of the dissent that he "thought" at the time of Guardians that disparate-impact regulations could be enforced "in an implied action against private parties," post, at 9, n. 6. But we have the better interpretation of what our colleague wrote in Guardians. In the closing section of his opinion, Justice Stevens concluded that because respondents in that case had "violated the petitioners' rights under [the] regulations ... [t]he petitioners were therefore entitled to the compensation they sought under 42 U.S.C. 1983 and were awarded by the District Court." 463 U.S., at 645. The passage omits any mention of a direct private right of action to enforce the regulations, and the footnote we have quoted in text-which appears immediately after this concluding sentence, see id., at 645, n. 18-makes clear that the omission was not accidental. 4 Ultimately, the dissent agrees that "the holding in Guardians does not compel the conclusion that a private right of action exists to enforce the Title VI regulations against private parties ... ." Post, at 9. 5 It is true, as the dissent points out, see post, at 3-4, that three Justices who concurred in the result in Lau relied on regulations promulgated under 602 to support their position, see Lau v. Nichols, 414 U.S. 563, 570-571 (1974) (Stewart, J., concurring in result). But the five Justices who made up the majority did not, and their holding is not made coextensive with the concurrence because their opinion does not expressly preclude (is "consistent with," see post, at 4) the concurrence's approach. The Court would be in an odd predicament if a concurring minority of the Justices could force the majority to address a point they found it unnecessary (and did not wish) to address, under compulsion of Justice Stevens' new principle that silence implies agreement. 6 For this reason, the dissent's extended discussion of the scope of agencies' regulatory authority under 602, see post, at 13-15, is beside the point. We cannot help observing, however, how strange it is to say that disparate-impact regulations are "inspired by, at the service of, and inseparably intertwined with" 601, post, at 15, when 601 permits the very behavior that the regulations forbid. See Guardians, 463 U.S., at 613 (O'Connor, J., concurring in judgment) ("If, as five members of the Court concluded in Bakke, the purpose of Title VI is to proscribe only purposeful discrimination ... , regulations that would proscribe conduct by the recipient having only a discriminatory effect ... do not simply 'further' the purpose of Title VI; they go well beyond that purpose"). 7 Although the dissent claims that we "adop[t] a methodology that blinds itself to important evidence of congressional intent," see post, at 21, our methodology is not novel, but well established in earlier decisions (including one authored by Justice Stevens, see Northwest Airlines, Inc. v. Transport Workers, 451 U.S. 77, 94, n. 31 (1981)), which explain that the interpretive inquiry begins with the text and structure of the statute, see id., at 91, and ends once it has become clear that Congress did not provide a cause of action. 8 The dissent complains that we "offe[r] little affirmative support" for this conclusion. Post, at 24. But as Justice Stevens has previously recognized in an opinion for the Court, "affirmative" evidence of congressional intent must be provided for an implied remedy, not against it, for without such intent "the essential predicate for implication of a private remedy simply does not exist," Northwest Airlines, Inc., 451 U.S., at 94. The dissent's assertion that "petitioners have marshaled substantial affirmative evidence that a private right of action exists to enforce Title VI and the regulations validly promulgated thereunder," post, at 24-25, n. 26 (second emphasis added), once again begs the question whether authorization of a private right of action to enforce a statute constitutes authorization of a private right of action to enforce regulations that go beyond what the statute itself requires. Stevens, J.,	1 This case presents the question whether private individuals may sue to enforce disparate-impact regulations promulgated under Title VI of the Civil Rights Act of 1964. 2 * The Alabama Department of Public Safety (Department), of which petitioner James Alexander is the Director, accepted grants of financial assistance from the United States Department of Justice (DOJ) and Department of Transportation (DOT) and so subjected itself to the restrictions of Title VI of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000d et seq. Section 601 of that Title provides that no person shall, "on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity" covered by Title VI. 42 U.S.C. 2000d. Section 602 authorizes federal agencies "to effectuate the provisions of [601] by issuing rules, regulations, or orders of general applicability," 42 U.S.C. 2000d-1, and the DOJ in an exercise of this authority promulgated a regulation forbidding funding recipients to "utilize criteria or methods of administration which have the effect of subjecting individuals to discrimination because of their race, color, or national origin" 28 CFR 42.104(b)(2) See also 49 CFR 21.5(b)(2) (similar DOT regulation). 3 The State of Alabama amended its Constitution in 1990 to declare English "the official language of the state of Alabama." Amdt. 509. Pursuant to this provision and, petitioners have argued, to advance public safety, the Department decided to administer state driver's license examinations only in English. Respondent Sandoval, as representative of a class, brought suit in the United States District Court for the Middle District of Alabama to enjoin the English-only policy, arguing that it violated the DOJ regulation because it had the effect of subjecting non-English speakers to discrimination based on their national origin. The District Court agreed. It enjoined the policy and ordered the Department to accommodate non-English speakers. Petitioners appealed to the Court of Appeals for the Eleventh Circuit, which affirmed. Both courts rejected petitioners' argument that Title VI did not provide respondents a cause of action to enforce the regulation. 4 We do not inquire here whether the DOJ regulation was authorized by 602, or whether the courts below were correct to hold that the English-only policy had the effect of discriminating on the basis of national origin. The petition for writ of certiorari raised, and we agreed to review, only the question posed in the first paragraph of this opinion: whether there is a private cause of action to enforce the regulation. II 5 Although Title VI has often come to this Court, it is fair to say (indeed, perhaps an understatement) that our opinions have not eliminated all uncertainty regarding its commands. For purposes of the present case, however, it is clear from our decisions, from Congress's amendments of Title VI, and from the parties' concessions that three aspects of Title VI must be taken as given. First, private individuals may sue to enforce 601 of Title VI and obtain both injunctive relief and damages. In the Court held that a private right of action existed to enforce Title IX of the Education Amendments of 1972, as amended, 20 U.S.C. 1681 et seq. The reasoning of that decision embraced the existence of a private right to enforce Title VI as well. "Title IX," the Court noted, "was patterned after Title VI of the Civil Rights Act of 1964." And, "[i]n 1972 when Title IX was enacted, the [parallel] language in Title VI had already been construed as creating a private remedy." That meant, the Court reasoned, that Congress had intended Title IX, like Title VI, to provide a private cause of action. Congress has since ratified Cannon's holding. Section 1003 of the Rehabilitation Act Amendments of 42 U.S.C. 2000d-7, expressly abrogated States' sovereign immunity against suits brought in federal court to enforce Title VI and provided that in a suit against a State "remedies (including remedies both at law and in equity) are available to the same extent as such remedies are available in the suit against any public or private entity other than a State," 2000d-7(a)(2). We recognized in that 2000d-7 "cannot be read except as a validation of Cannon's holding." ; see also (same). It is thus beyond dispute that private individuals may sue to enforce 6 Second, it is similarly beyond dispute-and no party disagrees-that 601 prohibits only intentional discrimination. In Regents of Univ. of the Court reviewed a decision of the California Supreme Court that had enjoined the University of California Medical School from "according any consideration to race in its admissions process." Essential to the Court's holding reversing that aspect of the California court's decision was the determination that 601 "proscribe[s] only those racial classifications that would violate the Equal Protection Clause or the Fifth Amendment." ; see also In the Court made clear that under only intentional discrimination was forbidden by -611 ; ; What we said in is true today: "Title VI itself directly reach[es] only instances of intentional discrimination."1 7 Third, we must assume for purposes of deciding this case that regulations promulgated under 602 of Title VI may validly proscribe activities that have a disparate impact on racial groups, even though such activities are permissible under Though no opinion of this Court has held that, five Justices in voiced that view of the law at least as alternative grounds for their decisions, see -592 ; ; and dictum in is to the same effect, see 469 U.S., at 295, n. 11. These statements are in considerable tension with the rule of and that 601 forbids only intentional discrimination, see, e.g., -613 but petitioners have not challenged the regulations here. We therefore assume for the purposes of deciding this case that the DOJ and DOT regulations proscribing activities that have a disparate impact on the basis of race are valid. 8 Respondents assert that the issue in this case, like the first two described above, has been resolved by our cases. To reject a private cause of action to enforce the disparate-impact regulations, they say, we would "[have] to ignore the actual language of and Cannon." Brief for Respondents 13. The language in Cannon to which respondents refer does not in fact support their position, as we shall discuss at length below, see infra, at 12-13. But in any event, this Court is bound by holdings, not language. Cannon was decided on the assumption that the University of had intentionally discriminated against petitioner. See (noting that respondents "admitted arguendo" that petitioner's "application for admission to medical school was denied by the respondents because she is a woman"). It therefore held that Title IX created a private right of action to enforce its ban on intentional discrimination, but had no occasion to consider whether the right reached regulations barring disparate-impact discrimination.2 In the Court held that private individuals could not recover compensatory damages under Title VI except for intentional discrimination. Five Justices in addition voted to uphold the disparate-impact regulations (four would have declared them invalid, see n. 5 ; -614 ), but of those five, three expressly reserved the question of a direct private right of action to enforce the regulations, saying that "[w]hether a cause of action against private parties exists directly under the regulations [is a] questio[n] that [is] not presented by this case."3 Thus, only two Justices had cause to reach the issue that respondents say the "actual language" of resolves. Neither that case,4 nor any other in this Court, has held that the private right of action exists. 9 Nor does it follow straightaway from the three points we have taken as given that Congress must have intended a private right of action to enforce disparate-impact regulations. We do not doubt that regulations applying 601's ban on intentional discrimination are covered by the cause of action to enforce that section. Such regulations, if valid and reasonable, authoritatively construe the statute itself, see NationsBank of N. C., N. ; Chevron U.S. and it is therefore 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. The many cases that respondents say have "assumed" that a cause of action to enforce a statute includes one to enforce its regulations illustrate (to the extent that cases in which an issue was not presented can illustrate anything) only this point; each involved regulations of the type we have just described, as respondents conceded at oral argument, Tr. of Oral Arg. 33. See National Collegiate Athletic ; School Bd. of Nassau ; (regulation interpreting Title VI to require "affirmative action" remedying effects of intentional discrimination); 309 Our decision in falls within the same category. The Title VI regulations at issue in Lau, similar to the ones at issue here, forbade funding recipients to take actions which had the effect of discriminating on the basis of race, color, or national origin. Unlike our later cases, however, the Court in Lau interpreted 601 itself to proscribe disparate-impact discrimination, saying that it "rel[ied] solely on 601 to reverse the Court of Appeals," and that the disparate-impact regulations simply "[made] sure that recipients of federal aid conduct[ed] any federally financed projects consistently with 601,"5 10 We must face now the question avoided by Lau, because we have since rejected Lau's interpretation of 601 as reaching beyond intentional discrimination. See It is clear now that the disparate-impact regulations do not simply apply 601-since they indeed forbid conduct that 601 permits-and therefore clear that the private right of action to enforce 601 does not include a private right to enforce these regulations. See Central Bank of Denver, N. That right must come, if at all, from the independent force of 602. As stated earlier, we assume for purposes of this decision that 602 confers the authority to promulgate disparate-impact regulations6; the question remains whether it confers a private right of action to enforce them. If not, we must conclude that a failure to comply with regulations promulgated under 602 that is not also a failure to comply with 601 is not actionable. 11 Implicit in our discussion thus far has been a particular understanding of the genesis of private causes of action. Like substantive federal law itself, private rights of action to enforce federal law must be created by Congress. Touche Ross & The judicial task is to interpret the statute Congress has passed to determine whether it displays an intent to create not just a private right but also a private remedy. Transamerica Mortgage Advisors, Statutory intent on this latter point is determinative. See, e.g., Virginia Bankshares, ; Merrell Dow Pharmaceuticals Without it, a cause of action does not exist and courts may not create one, no matter how desirable that might be as a policy matter, or how compatible with the statute. See, e.g., Massachusetts Mut. Life Ins. ; Transamerica Mortgage Advisors, ; Touche Ross & "Raising up causes of action where a statute has not created them may be a proper function for common-law courts, but not for federal tribunals." Lampf, Pleva, Lipkind, Prupis & 12 Respondents would have us revert in this case to the understanding of private causes of action that held sway 40 years ago when Title VI was enacted. That understanding is captured by the Court's statement in J. I. Case that "it is the duty of the courts to be alert to provide such remedies as are necessary to make effective the congressional purpose" expressed by a statute. We abandoned that understanding in -which itself interpreted a statute enacted under the ancien regime-and have not returned to it since. Not even when interpreting the same Securities Exchange Act of 1934 that was at issue in Borak have we applied Borak's method for discerning and defining causes of action. See Central Bank of Denver, N. ; Musick, Peeler & 291- ; Virginia Bankshares, at -1103; Touche Ross & at 576-. Having sworn off the habit of venturing beyond Congress's intent, we will not accept respondents' invitation to have one last drink. 13 Nor do we agree with the Government that our cases interpreting statutes enacted prior to have given "dispositive weight" to the "expectations" that the enacting Congress had formed "in light of the 'contemporary legal context.' " Brief for United States 14. Only three of our legion implied-right-of-action cases have found this sort of "contemporary legal context" relevant, and two of those involved Congress's enactment (or reenactment) of the verbatim statutory text that courts had previously interpreted to create a private right of action. See Merrill Lynch, Pierce, Fenner & Smith, 3-379 ; -699. In the third case, this sort of "contemporary legal context" simply buttressed a conclusion independently supported by the text of the statute. See We have never accorded dispositive weight to context shorn of text. In determining whether statutes create private rights of action, as in interpreting statutes generally, see 4 legal context matters only to the extent it clarifies text. 14 We therefore begin (and find that we can end) our search for Congress's intent with the text and structure of Title VI.7 Section 602 authorizes federal agencies "to effectuate the provisions of [601] by issuing rules, regulations, or orders of general applicability." 42 U.S.C. 2000d-1. It is immediately clear that the "rights-creating" language so critical to the Court's analysis in Cannon of 601, see n. 13, is completely absent from 602. Whereas 601 decrees that "[n]o person shall be subjected to discrimination," 42 U.S.C. 2000d the text of 602 provides that "[e]ach Federal department and agency is authorized and directed to effectuate the provisions of [601]," 42 U.S.C. 2000d-1. Far from displaying congressional intent to create new rights, 602 limits agencies to "effectuat[ing]" rights already created by And the focus of 602 is twice removed from the individuals who will ultimately benefit from Title VI's protection. Statutes that focus on the person regulated rather than the individuals protected create "no implication of an intent to confer rights on a particular class of persons." Section 602 is yet a step further removed: it focuses neither on the individuals protected nor even on the funding recipients being regulated, but on the agencies that will do the regulating. Like the statute found not to create a right of action in Universities Research Assn., Coutu, 602 is "phrased as a directive to federal agencies engaged in the distribution of public funds," When this is true, "[t]here [is] far less reason to infer a private remedy in favor of individual persons," So far as we can tell, this authorizing portion of 602 reveals no congressional intent to create a private right of action. Nor do the methods that 602 goes on to provide for enforcing its authorized regulations manifest an intent to create a private remedy; if anything, they suggest the opposite. Section 602 empowers agencies to enforce their regulations either by terminating funding to the "particular program, or part thereof," that has violated the regulation or "by any other means authorized by law," 42 U.S.C. 2000d-1. No enforcement action may be taken, however, "until the department or agency concerned has advised the appropriate person or persons of the failure to comply with the requirement and has determined that compliance cannot be secured by voluntary means." And every agency enforcement action is subject to judicial review. 2000d-2. If an agency attempts to terminate program funding, still more restrictions apply. The agency head must "file with the committees of the House and Senate having legislative jurisdiction over the program or activity involved a full written report of the circumstances and the grounds for such action." 2000d-1. And the termination of funding does not "become effective until thirty days have elapsed after the filing of such report." Whatever these elaborate restrictions on agency enforcement may imply for the private enforcement of rights created outside of 602, compare ; Regents of Univ. of 438 U.S., 19, n. 26 with -610 ; Regents of Univ. of they tend to contradict a congressional intent to create privately enforceable rights through 602 itself. The express provision of one method of enforcing a substantive rule suggests that Congress intended to preclude others. See, e.g., ; Northwest Airlines, Transport Workers, ; Transamerica Mortgage Advisors, -20. Sometimes the suggestion is so strong that it precludes a finding of congressional intent to create a private right of action, even though other aspects of the statute (such as language making the would-be plaintiff "a member of the class for whose benefit the statute was enacted") suggest the contrary. Massachusetts Mut. Life Ins. ; see And as our Rev. Stat. 1979, 42 U.S.C. 1983 cases show, some remedial schemes foreclose a private cause of action to enforce even those statutes that admittedly create substantive private rights. See, e.g., Middlesex County Sewerage In the present case, the claim of exclusivity for the express remedial scheme does not even have to overcome such obstacles. The question whether 602's remedial scheme can overbear other evidence of congressional intent is simply not presented, since we have found no evidence anywhere in the text to suggest that Congress intended to create a private right to enforce regulations promulgated under 602. 16 Both the Government and respondents argue that the regulations contain rights-creating language and so must be privately enforceable, see Brief for United States ; Brief for Respondents 31, but that argument skips an analytical step. Language in a regulation may invoke a private right of action that Congress through statutory text created, but it may not create a right that Congress has not. Touche Ross & n. 18 Thus, when a statute has provided a general authorization for private enforcement of regulations, it may perhaps be correct that the intent displayed in each regulation can determine whether or not it is privately enforceable. But it is most certainly incorrect to say that language in a regulation can conjure up a private cause of action that has not been authorized by Congress. Agencies may play the sorcerer's apprentice but not the sorcerer himself. 17 The last string to respondents' and the Government's bow is their argument that two amendments to Title VI "ratified" this Court's decisions finding an implied private right of action to enforce the disparate-impact regulations. See Rehabilitation Act Amendments of 1003, 42 U.S.C. 2000d-7; Civil Rights Restoration Act of 1987, 6, 42 U.S.C. 2000d-4a. One problem with this argument is that, as explained above, none of our decisions establishes (or even assumes) the private right of action at issue here, see which is why in three Justices were able expressly to reserve the question. See 463 U.S., Incorporating our cases in the amendments would thus not help respondents. Another problem is that the incorporation claim itself is flawed. Section 1003 of the Rehabilitation Act Amendments of on which only respondents rely, by its terms applies only to suits "for a violation of a statute," 42 U.S.C. 2000d-7(a)(2) (emphasis added). It therefore does not speak to suits for violations of regulations that go beyond the statutory proscription of Section 6 of the Civil Rights Restoration Act of 1987 is even less on point. That provision amends Title VI to make the term "program or activity" cover larger portions of the institutions receiving federal financial aid than it had previously covered, see Grove It is impossible to understand what this has to do with implied causes of action-which is why we declared in that 6 did not "in any way alte[r] the existing rights of action and the corresponding remedies permissible under Title VI." Respondents point to Merrill Lynch, Pierce, Fenner & Smith, -382, which inferred congressional intent to ratify lower court decisions regarding a particular statutory provision when Congress comprehensively revised the statutory scheme but did not amend that provision. But we recently criticized 's reliance on congressional inaction, saying that "[a]s a general matter [the] argumen[t] deserve[s] little weight in the interpretive process." Central Bank of Denver, N. And when, as here, Congress has not comprehensively revised a statutory scheme but has made only isolated amendments, we have spoken more bluntly: "It is 'impossible to assert with any degree of assurance that congressional failure to act represents' affirmative congressional approval of the Court's statutory interpretation." ). 18 Neither as originally enacted nor as later amended does Title VI display an intent to create a freestanding private right of action to enforce regulations promulgated under 602.8 We therefore hold that no such right of action exists. Since we reach this conclusion applying our standard test for discerning private causes of action, we do not address petitioners' additional argument that implied causes of action against States (and perhaps nonfederal state actors generally) are inconsistent with the clear statement rule of Pennhurst State School and See 19 The judgment of the Court of Appeals is reversed. 20 It is so ordered. NOTES: 1 Since the parties do not dispute this point, it is puzzling to see Justice Stevens go out of his way to disparage the decisions in Regents of Univ. of and as "somewhat haphazard," post, at 16, particularly since he had already accorded stare decisis effect to the former 18 years ago, see -642 and since he participated in creating the latter, see Nor does Justice Stevens' reliance on Chevron U.S. see post, at 17-18, explain his aboutface, since he expressly reaffirms, see post, at 17-18, n. 18, the settled principle that decisions of this Court declaring the meaning of statutes prior to Chevron need not be reconsidered after Chevron in light of agency regulations that were already in force when our decisions were issued, Lechmere, NLRB, ; Maislin Industries, U.S., Primary Steel, Inc., ; see also ("It is, of course, of no importance that [an opinion] predates Chevron As we made clear in Chevron, the interpretive maxims summarized therein were 'well-settled principles' "). 2 Although the dissent acknowledges that "the breadth of [Cannon's] precedent is a matter upon which reasonable jurists may differ," post, at 21, it disagrees with our reading of Cannon's holding because it thinks the distinction we draw between disparate-impact and intentional discrimination was "wholly foreign" to that opinion, see post, at 5. Cannon, however, was decided less than one year after the Court in had drawn precisely that distinction with respect to Title VI, see and it is absurd to think that Cannon meant, without discussion, to ban under Title IX the very disparate-impact discrimination that said Title VI permitted. The only discussion in Cannon of Title IX's scope is found in Justice Powell's dissenting opinion, which simply assumed that the conclusion that Title IX would be limited to intentional discrimination was "forgone in light of our holding" in The dissent's additional claim that Cannon provided a private right of action for "all the discrimination prohibited by the regulatory scheme contained in Title IX," post, at 5, n. 4 (emphasis added), simply begs the question at the heart of this case, which is whether a right of action to enforce disparate-impact regulations must be independently identified, see infra, at 7-10. 3 We of course accept the statement by the author of the dissent that he "thought" at the time of that disparate-impact regulations could be enforced "in an implied action against private parties," post, at 9, n. 6. But we have the better interpretation of what our colleague wrote in In the closing section of his opinion, Justice Stevens concluded that because respondents in that case had "violated the petitioners' rights under [the] regulations [t]he petitioners were therefore entitled to the compensation they sought under 42 U.S.C. 1983 and were awarded by the District Court." The passage omits any mention of a direct private right of action to enforce the regulations, and the footnote we have quoted in text-which appears immediately after this concluding sentence, see -makes clear that the omission was not accidental. 4 Ultimately, the dissent agrees that "the holding in does not compel the conclusion that a private right of action exists to enforce the Title VI regulations against private parties" Post, at 9. 5 It is true, as the dissent points out, see post, at 3-4, that three Justices who concurred in the result in Lau relied on regulations promulgated under 602 to support their position, see But the five Justices who made up the majority did not, and their holding is not made coextensive with the concurrence because their opinion does not expressly preclude (is "consistent with," see post, ) the concurrence's approach. The Court would be in an odd predicament if a concurring minority of the Justices could force the majority to address a point they found it unnecessary (and did not wish) to address, under compulsion of Justice Stevens' new principle that silence implies agreement. 6 For this reason, the dissent's extended discussion of the scope of agencies' regulatory authority under 602, see post, at 13-, is beside the point. We cannot help observing, however, how strange it is to say that disparate-impact regulations are "inspired by, at the service of, and inseparably intertwined with" 601, post, at when 601 permits the very behavior that the regulations forbid. See ("If, as five members of the Court concluded in the purpose of Title VI is to proscribe only purposeful discrimination regulations that would proscribe conduct by the recipient having only a discriminatory effect do not simply 'further' the purpose of Title VI; they go well beyond that purpose"). 7 Although the dissent claims that we "adop[t] a methodology that blinds itself to important evidence of congressional intent," see post, at 21, our methodology is not novel, but well established in earlier decisions ), which explain that the interpretive inquiry begins with the text and structure of the statute, see and ends once it has become clear that Congress did not provide a cause of action. 8 The dissent complains that we "offe[r] little affirmative support" for this conclusion. Post, at 24. But as Justice Stevens has previously recognized in an opinion for the Court, "affirmative" evidence of congressional intent must be provided for an implied remedy, not against it, for without such intent "the essential predicate for implication of a private remedy simply does not exist," Northwest Airlines, Inc., The dissent's assertion that "petitioners have marshaled substantial affirmative evidence that a private right of action exists to enforce Title VI and the regulations validly promulgated thereunder," post, at 24-25, n. 26 (second emphasis added), once again begs the question whether authorization of a private right of action to enforce a statute constitutes authorization of a private right of action to enforce regulations that go beyond what the statute itself requires. Stevens, J.,	1,892
Justice Stevens	dissenting	false	Hunt, Governor of North Carolina v. Cromartie	2001-04-18	null	https://www.courtlistener.com/opinion/118421/hunt-governor-of-north-carolina-v-cromartie/	https://www.courtlistener.com/api/rest/v3/clusters/118421/	2,001	2000-041	2	5	4	22 In 1964, as part of a groundbreaking and comprehensive civil rights Act, Congress prohibited recipients of federal funds from discriminating on the basis of race, ethnicity, or national origin. Title VI of the Civil Rights Act of 1964, 78 Stat. 252, 42 U.S.C. 2000d to 2000d-7. Pursuant to powers expressly delegated by that Act, the federal agencies and departments responsible for awarding and administering federal contracts immediately adopted regulations prohibiting federal contractees from adopting policies that have the "effect" of discriminating on those bases. At the time of the promulgation of these regulations, prevailing principles of statutory construction assumed that Congress intended a private right of action whenever such a cause of action was necessary to protect individual rights granted by valid federal law. Relying both on this presumption and on independent analysis of Title VI, this Court has repeatedly and consistently affirmed the right of private individuals to bring civil suits to enforce rights guaranteed by Title VI. A fair reading of those cases, and coherent implementation of the statutory scheme, requires the same result under Title VI's implementing regulations. 23 In separate lawsuits spanning several decades, we have endorsed an action identical in substance to the one brought in this case, see Lau v. Nichols, 414 U.S. 563 (1974); demonstrated that Congress intended a private right of action to protect the rights guaranteed by Title VI, see Cannon v. University of Chicago, 441 U.S. 677 (1979); and concluded that private individuals may seek declaratory and injunctive relief against state officials for violations of regulations promulgated pursuant to Title VI, see Guardians Assn. v. Civil Serv. Comm'n of New York City, 463 U.S. 582 (1983). Giving fair import to our language and our holdings, every Court of Appeals to address the question has concluded that a private right of action exists to enforce the rights guaranteed both by the text of Title VI and by any regulations validly promulgated pursuant to that Title, and Congress has adopted several statutes that appear to ratify the status quo. 24 Today, in a decision unfounded in our precedent and hostile to decades of settled expectations, a majority of this Court carves out an important exception to the right of private action long recognized under Title VI. In so doing, the Court makes three distinct, albeit interrelated, errors. First, the Court provides a muddled account of both the reasoning and the breadth of our prior decisions endorsing a private right of action under Title VI, thereby obscuring the conflict between those opinions and today's decision. Second, the Court offers a flawed and unconvincing analysis of the relationship between 601 and 602 of the Civil Rights Act of 1964, ignoring more plausible and persuasive explanations detailed in our prior opinions. Finally, the Court badly misconstrues the theoretical linchpin of our decision in Cannon v. University of Chicago, 441 U.S. 677 (1979), mistaking that decision's careful contextual analysis for judicial fiat. 25 * The majority is undoubtedly correct that this Court has never said in so many words that a private right of action exists to enforce the disparate-impact regulations promulgated under 602. However, the failure of our cases to state this conclusion explicitly does not absolve the Court of the responsibility to canvass our prior opinions for guidance. Reviewing these opinions with the care they deserve, I reach the same conclusion as the Courts of Appeals: This Court has already considered the question presented today and concluded that a private right of action exists.1 26 When this Court faced an identical case 27 years ago, all the Justices believed that private parties could bring lawsuits under Title VI and its implementing regulations to enjoin the provision of governmental services in a manner that discriminated against non-English speakers. See Lau v. Nichols, 414 U.S. 563 (1974). While five Justices saw no need to go beyond the command of 601, Chief Justice Burger, Justice Stewart, and Justice Blackmun relied specifically and exclusively on the regulations to support the private action, see id., at 569 (Stewart, J., concurring in result) (citing Mourning v. Family Publications Service, Inc., 411 U.S. 356, 369 (1973); Thorpe v. Housing Authority of Durham, 393 U.S. 268, 280-281 (1969)). There is nothing in the majority's opinion in Lau, or in earlier opinions of the Court, that is not fully consistent with the analysis of the concurring Justices or that would have differentiated between private actions to enforce the text of 601 and private actions to enforce the regulations promulgated pursuant to 602. See Guardians, 463 U.S., at 591 (principal opinion of White, J.) (describing this history and noting that, up to that point, no Justice had ever expressed disagreement with Justice Stewart's analysis in Lau).2 27 Five years later, we more explicitly considered whether a private right of action exists to enforce the guarantees of Title VI and its gender-based twin, Title IX. See Cannon v. University of Chicago, 441 U.S. 677 (1979). In that case, we examined the text of the statutes, analyzed the purpose of the laws, and canvassed the relevant legislative history. Our conclusion was unequivocal: "We have no doubt that Congress intended to create Title IX remedies comparable to those available under Title VI and that it understood Title VI as authorizing an implied private cause of action for victims of the prohibited discrimination." Id., at 703. 28 The majority acknowledges that Cannon is binding precedent with regard to both Title VI and Title IX, ante, at 3-4, but seeks to limit the scope of its holding to cases involving allegations of intentional discrimination. The distinction the majority attempts to impose is wholly foreign to Cannon's text and reasoning. The opinion in Cannon consistently treats the question presented in that case as whether a private right of action exists to enforce "Title IX" (and by extension "Title VI"),3 and does not draw any distinctions between the various types of discrimination outlawed by the operation of those statutes. Though the opinion did not reach out to affirmatively preclude the drawing of every conceivable distinction, it could hardly have been more clear as to the scope of its holding: A private right of action exists for "victims of the prohibited discrimination." 441 U.S., at 703 (emphasis added). Not some of the prohibited discrimination, but all of it.4 29 Moreover, Cannon was itself a disparate-impact case. In that case, the plaintiff brought suit against two private universities challenging medical school admissions policies that set age limits for applicants. Plaintiff, a 39-year-old woman, alleged that these rules had the effect of discriminating against women because the incidence of interrupted higher education is higher among women than among men. In providing a shorthand description of her claim in the text of the opinion, we ambiguously stated that she had alleged that she was denied admission "because she is a woman," but we appended a lengthy footnote setting forth the details of her disparate-impact claim. Other than the shorthand description of her claim, there is not a word in the text of the opinion even suggesting that she had made the improbable allegation that the University of Chicago and Northwestern University had intentionally discriminated against women. In the context of the entire opinion (including both its analysis and its uncontested description of the facts of the case), that single ambiguous phrase provides no basis for limiting the case's holding to incidents of intentional discrimination. If anything, the fact that the phrase "because she is a woman" encompasses both intentional and disparate-impact claims should have made it clear that the reasoning in the opinion was equally applicable to both types of claims. In any event, the holding of the case certainly applied to the disparate-impact claim that was described in detail in footnote 1 of the opinion, id., at 680. 30 Our fractured decision in Guardians Assn. v. Civil Serv. Comm'n of New York City, 463 U.S. 582 (1983), reinforces the conclusion that this issue is effectively settled. While the various opinions in that case took different views as to the spectrum of relief available to plaintiffs in Title VI cases, a clear majority of the Court expressly stated that private parties may seek injunctive relief against governmental practices that have the effect of discriminating against racial and ethnic minorities. Id., at 594-595, 607 (White, J.); id., at 634 (Marshall, J., dissenting); id., at 638 (Stevens, J., joined by Brennan and Blackmun, JJ., dissenting). As this case involves just such an action, its result ought to follow naturally from Guardians. 31 As I read today's opinion, the majority declines to accord precedential value to Guardians because the five Justices in the majority were arguably divided over the mechanism through which private parties might seek such injunctive relief.5 This argument inspires two responses. First, to the extent that the majority denies relief to the respondents merely because they neglected to mention 42 U.S.C. 1983 in framing their Title VI claim, this case is something of a sport. Litigants who in the future wish to enforce the Title VI regulations against state actors in all likelihood must only reference 1983 to obtain relief; indeed, the plaintiffs in this case (or other similarly situated individuals) presumably retain the option of re-challenging Alabama's English-only policy in a complaint that invokes 1983 even after today's decision. 32 More important, the majority's reading of Guardians is strained even in reference to the broader question whether injunctive relief is available to remedy violations of the Title VI regulations by nongovernmental grantees. As Guardians involved an action against a governmental entity, making 1983 relief available, the Court might have discussed the availability of judicial relief without addressing the scope of the implied private right of action available directly under Title VI. See 463 U.S., at 638 (Stevens, J.) ("Even if it were not settled by now that Title VI authorizes appropriate relief, both prospective and retroactive, to victims of racial discrimination at the hands of recipients of federal funds, the same result would follow in this case because the petitioners have sought relief under 42 U.S.C. 1983" (emphasis deleted)). However, the analysis in each of the relevant opinions did not do so.6 Rather than focusing on considerations specific to 1983, each of these opinions looked instead to our opinion in Cannon, to the intent of the Congress that adopted Title VI and the contemporaneous executive decisionmakers who crafted the Disparate-impact regulations, and to general principles of remediation.7 33 In summary, there is clear precedent of this Court for the proposition that the plaintiffs in this case can seek injunctive relief either through an implied right of action or through 1983. Though the holding in Guardians does not compel the conclusion that a private right of action exists to enforce the Title VI regulations against private parties, the rationales of the relevant opinions strongly imply that result. When that fact is coupled with our holding in Cannon and our unanimous decision in Lau, the answer to the question presented in this case is overdetermined.8 Even absent my continued belief that Congress intended a private right of action to enforce both Title VI and its implementing regulations, I would answer the question presented in the affirmative and affirm the decision of the Court of Appeals as a matter of stare decisis.9 II 34 Underlying the majority's dismissive treatment of our prior cases is a flawed understanding of the structure of Title VI and, more particularly, of the relationship between 601 and 602. To some extent, confusion as to the relationship between the provisions is understandable, as Title VI is a deceptively simple statute. Section 601 of the Act lays out its straightforward commitment: "No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 42 U.S.C. 2000d. Section 602 "authorize[s] and direct[s]" all federal departments and agencies empowered to extend federal financial assistance to issue "rules, regulations, or orders of general applicability" in order to "effectuate" 601's antidiscrimination mandate. 42 U.S.C. 2000d-1.10 35 On the surface, the relationship between 601 and 602 is unproblematic-601 states a basic principle, 602 authorizes agencies to develop detailed plans for defining the contours of the principle and ensuring its enforcement. In the context of federal civil rights law, however, nothing is ever so simple. As actions to enforce 601's antidiscrimination principle have worked their way through the courts, we have developed a body of law giving content to 601's broadly worded commitment. E.g., United States v. Fordice, 505 U.S. 717, 732, n. 7 (1992); Guardians Assn. v. Civil Serv. Comm'n of New York City, 463 U.S. 582 (1983); Regents of Univ. of Cal. v. Bakke, 438 U.S. 265 (1978). As the majority emphasizes today, the Judiciary's understanding of what conduct may be remedied in actions brought directly under 601 is, in certain ways, more circumscribed than the conduct prohibited by the regulations. See, e.g., ante, at 5. 36 Given that seeming peculiarity, it is necessary to examine closely the relationship between 601 and 602, in order to understand the purpose and import of the regulations at issue in this case. For the most part, however, the majority ignores this task, assuming that the judicial decisions interpreting 601 provide an authoritative interpretation of its true meaning and treating the regulations promulgated by the agencies charged with administering the statute as poor step-cousins-either parroting the text of 601 (in the case of regulations that prohibit intentional discrimination) or forwarding an agenda untethered to 601's mandate (in the case of disparate-impact regulations). 37 The majority's statutory analysis does violence to both the text and the structure of Title VI. Section 601 does not stand in isolation, but rather as part of an integrated remedial scheme. Section 602 exists for the sole purpose of forwarding the antidiscrimination ideals laid out in 601.11 The majority's persistent belief that the two sections somehow forward different agendas finds no support in the statute. Nor does Title VI anywhere suggest, let alone state, that for the purpose of determining their legal effect, the "rules, regulations, [and] orders of general applicability" adopted by the agencies are to be bifurcated by the judiciary into two categories based on how closely the courts believe the regulations track the text of 601. 38 What makes the Court's analysis even more troubling is that our cases have already adopted a simpler and more sensible model for understanding the relationship between the two sections. For three decades, we have treated 602 as granting the responsible agencies the power to issue broad prophylactic rules aimed at realizing the vision laid out in 601, even if the conduct captured by these rules is at times broader than that which would otherwise be prohibited. 39 In Lau, our first Title VI case, the only three Justices whose understanding of 601 required them to reach the question explicitly endorsed the power of the agencies to adopt broad prophylactic rules to enforce the aims of the statute. As Justice Stewart explained, regulations promulgated pursuant to 602 may "go beyond . . . 601" as long as they are "reasonably related" to its antidiscrimination mandate. 414 U.S., at 571 (Stewart, J., joined by Burger, C. J., and Blackmun, J., concurring in result). In Guardians, at least three Members of the Court adopted a similar understanding of the statute. See 463 U.S., at 643 (Stevens, J., joined by Brennan and Blackmun, JJ., dissenting). Finally, just 16 years ago, our unanimous opinion in Alexander v. Choate, 469 U.S. 287 (1985), treated this understanding of Title VI's structure as settled law. Writing for the Court, Justice Marshall aptly explained the interpretation of 602's grant of regulatory power that necessarily underlies our prior caselaw: "In essence, then, we [have] held that Title VI [has] delegated to the agencies in the first instance the complex determination of what sorts of disparate impacts upon minorities constituted sufficiently significant social problems, and [are] readily enough remediable, to warrant altering the practices of the federal grantees that ha[ve] produced those impacts." Id., at 293- 294. 40 This understanding is firmly rooted in the text of Title VI. As 602 explicitly states, the agencies are authorized to adopt regulations to "effectuate" 601's antidiscrimination mandate. 42 U.S.C. 2000d-1. The plain meaning of the text reveals Congress' intent to provide the relevant agencies with sufficient authority to transform the statute's broad aspiration into social reality. So too does a lengthy, consistent, and impassioned legislative history.12 41 This legislative design reflects a reasonable-indeed inspired-model for attacking the often-intractable problem of racial and ethnic discrimination. On its own terms, the statute supports an action challenging policies of federal grantees that explicitly or unambiguously violate antidiscrimination norms (such as policies that on their face limit benefits or services to certain races). With regard to more subtle forms of discrimination (such as schemes that limit benefits or services on ostensibly race-neutral grounds but have the predictable and perhaps intended consequence of materially benefiting some races at the expense of others), the statute does not establish a static approach but instead empowers the relevant agencies to evaluate social circumstances to determine whether there is a need for stronger measures.13 Such an approach builds into the law flexibility, an ability to make nuanced assessments of complex social realities, and an admirable willingness to credit the possibility of progress. 42 The "effects" regulations at issue in this case represent the considered judgment of the relevant agencies that discrimination on the basis of race, ethnicity, and national origin by federal contractees are significant social problems that might be remedied, or at least ameliorated, by the application of a broad prophylactic rule. Given the judgment underlying them, the regulations are inspired by, at the service of, and inseparably intertwined with 601's antidiscrimination mandate. Contrary to the majority's suggestion, they "appl[y]" 601's prohibition on discrimination just as surely as the intentional discrimination regulations the majority concedes are privately enforceable. Ante, at 7. 43 To the extent that our prior cases mischaracterize the relationship between 601 and 602, they err on the side of underestimating, not overestimating, the connection between the two provisions. While our cases have explicitly adopted an understanding of 601's scope that is somewhat narrower than the reach of the regulations,14 they have done so in an unorthodox and somewhat haphazard fashion. 44 Our conclusion that the legislation only encompasses intentional discrimination was never the subject of thorough consideration by a Court focused on that question. In Bakke, five Members of this Court concluded that 601 only prohibits race-based affirmative action programs in situations where the Equal Protection Clause would impose a similar ban. 438 U.S., at 287 (principal opinion of Powell, J.); id., at 325, 328, 352 (Brennan, J., joined by White, Marshall, and Blackmun, JJ., concurring in judgment in part and dissenting in part).15 In Guardians, the majority of the Court held that the analysis of those five Justices in Bakke compelled as a matter of stare decisis the conclusion that 601 does not on its own terms reach disparate impact cases. 463 U.S., at 610-611 (Powell, J., concurring in judgment); id., at 612 (O'Connor, J., concurring in judgment); id., at 642 (Stevens, J., joined by Brennan and Blackmun, JJ.). However, the opinions adopting that conclusion did not engage in any independent analysis of the reach of 601. Indeed, the only writing on this subject came from two of the five Members of the Bakke "majority," each of whom wrote separately to reject the remaining Justices' understanding of their opinions in Bakke and to insist that 601 does in fact reach some instances of unintentional discrimination. 463 U.S., at 589-590 (White, J.); id., at 623-624 (Marshall, J., dissenting).16 The Court's occasional rote invocation of this Guardians majority in later cases ought not obscure the fact that the question whether 601 applies to disparate-impact claims has never been analyzed by this Court on the merits.17 45 In addition, these Title VI cases seemingly ignore the well-established principle of administrative law that is now most often described as the "Chevron doctrine." See Chevron U.S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). In most other contexts, when the agencies charged with administering a broadly-worded statute offer regulations interpreting that statute or giving concrete guidance as to its implementation, we treat their interpretation of the statute's breadth as controlling unless it presents an unreasonable construction of the statutory text. See ibid. While there may be some dispute as to the boundaries of Chevron deference, see, e.g., Christensen v. Harris County, 529 U.S. 576 (2000), it is paradigmatically appropriate when Congress has clearly delegated agencies the power to issue regulations with the force of law and established formal procedures for the promulgation of such regulations.18 46 If we were writing on a blank slate, we might very well conclude that Chevron and similar cases decided both before and after Guardians provide the proper framework for understanding the structure of Title VI. Under such a reading there would be no incongruity between 601 and 602. Instead, we would read 602 as granting the federal agencies responsible for distributing federal funds the authority to issue regulations interpreting 601 on the assumption that their construction will-if reasonable-be incorporated into our understanding of 601's meaning.19 47 To resolve this case, however, it is unnecessary to answer the question whether our cases interpreting the reach of 601 should be reinterpreted in light of Chevron. If one understands the relationship between 601 and 602 through the prism of either Chevron or our prior Title VI cases, the question presented all but answers itself. If the regulations promulgated pursuant to 602 are either an authoritative construction of 601's meaning or prophylactic rules necessary to actualize the goals enunciated in 601, then it makes no sense to differentiate between private actions to enforce 601 and private actions to enforce 602. There is but one private action to enforce Title VI, and we already know that such an action exists.20 See Cannon, 441 U.S., at 703. III 48 The majority couples its flawed analysis of the structure of Title VI with an uncharitable understanding of the substance of the divide between those on this Court who are reluctant to interpret statutes to allow for private rights of action and those who are willing to do so if the claim of right survives a rigorous application of the criteria set forth in Cort v. Ash, 422 U.S. 66 (1975). As the majority narrates our implied right of action jurisprudence, ante, at 10-11, the Court's shift to a more skeptical approach represents the rejection of a common-law judicial activism in favor of a principled recognition of the limited role of a contemporary "federal tribunal." Ante, at 10. According to its analysis, the recognition of an implied right of action when the text and structure of the statute do not absolutely compel such a conclusion is an act of judicial self-indulgence. As much as we would like to help those disadvantaged by discrimination, we must resist the temptation to pour ourselves "one last drink." Ante, at 11. To do otherwise would be to "ventur[e] beyond Congress's intent." Ibid. 49 Overwrought imagery aside, it is the majority's approach that blinds itself to congressional intent. While it remains true that, if Congress intends a private right of action to support statutory rights, "the far better course is for it to specify as much when it creates those rights," Cannon, 441 U.S., at 717, its failure to do so does not absolve us of the responsibility to endeavor to discern its intent. In a series of cases since Cort v. Ash, we have laid out rules and developed strategies for this task. 50 The very existence of these rules and strategies assumes that we will sometimes find manifestations of an implicit intent to create such a right. Our decision in Cannon represents one such occasion. As the Cannon opinion iterated and reiterated, the question whether the plaintiff had a right of action that could be asserted in federal court was a "question of statutory construction," 441 U. S, at 688, see also id., at 717 (Rehnquist, J., concurring), not a question of policy for the Court to decide. Applying the Cort v. Ash factors, we examined the nature of the rights at issue, the text and structure of the statute, and the relevant legislative history.21 Our conclusion was that Congress unmistakably intended a private right of action to enforce both Title IX and Title VI. Our reasoning-and, as I have demonstrated, our holding-was equally applicable to intentional discrimination and disparate impact claims.22 51 Underlying today's opinion is the conviction that Cannon must be cabined because it exemplifies an "expansive rights-creating approach." Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 77 (1992) (Scalia, J. concurring in judgment). But, as I have taken pains to explain, it was Congress, not the Court, that created the cause of action, and it was the Congress that later ratified the Cannon holding in 1986 and again in 1988. See 503 U.S., at 72-73. 52 In order to impose its own preferences as to the availability of judicial remedies, the Court today adopts a methodology that blinds itself to important evidence of congressional intent. It is one thing for the Court to ignore the import of our holding in Cannon, as the breadth of that precedent is a matter upon which reasonable jurists may differ. It is entirely another thing for the majority to ignore the reasoning of that opinion and the evidence contained therein, as those arguments and that evidence speak directly to the question at issue today. As I stated above, see n. 21, supra, Cannon carefully explained that both Title VI and Title IX were intended to benefit a particular class of individuals, that the purposes of the statutes would be furthered rather than frustrated by the implication of a private right of action, and that the legislative histories of the statutes support the conclusion that Congress intended such a right. See also Part IV, infra. Those conclusions and the evidence supporting them continue to have force today. 53 Similarly, if the majority is genuinely committed to deciphering congressional intent, its unwillingness to even consider evidence as to the context in which Congress legislated is perplexing. Congress does not legislate in a vacuum. As the respondent and the Government suggest, and as we have held several times, the objective manifestations of congressional intent to create a private right of action must be measured in light of the enacting Congress' expectations as to how the judiciary might evaluate the question. See Thompson v. Thompson, 484 U.S. 174 (1988); Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U.S. 353, 378-379 (1982); Cannon, 441 U.S., at 698-699.23 54 At the time Congress was considering Title VI, it was normal practice for the courts to infer that Congress intended a private right of action whenever it passed a statute designed to protect a particular class that did not contain enforcement mechanisms which would be thwarted by a private remedy. See Merrill Lynch, 456 U.S., at 374-375 (discussing this history). Indeed, the very year Congress adopted Title VI, this Court specifically stated that "it is the duty of the courts to be alert to provide such remedies as are necessary to make effective the congressional purpose." J. I. Case Co. v. Borak, 377 U.S. 426, 433 (1964). Assuming, as we must, that Congress was fully informed as to the state of the law, the contemporary context presents important evidence as to Congress' intent-evidence the majority declines to consider. 55 Ultimately, respect for Congress' prerogatives is measured in deeds, not words. Today, the Court coins a new rule, holding that a private cause of action to enforce a statute does not encompass a substantive regulation issued to effectuate that statute unless the regulation does nothing more than "authoritatively construe the statute itself." Ante, at 7.24 This rule might be proper if we were the kind of "common-law court" the majority decries, ante, at 10, inventing private rights of action never intended by Congress. For if we are not construing a statute, we certainly may refuse to create a remedy for violations of federal regulations. But if we are faithful to the commitment to discerning congressional intent that all Members of this Court profess, the distinction is untenable. There is simply no reason to assume that Congress contemplated, desired, or adopted a distinction between regulations that merely parrot statutory text and broader regulations that are authorized by statutory text.25 IV 56 Beyond its flawed structural analysis of Title VI and an evident antipathy toward implied rights of action, the majority offers little affirmative support for its conclusion that Congress did not intend to create a private remedy for violations of the Title VI regulations.26 The Court offers essentially two reasons for its position. First, it attaches significance to the fact that the "rights-creating" language in 601 that defines the classes protected by the statute is not repeated in 602. Ante, at 13-14. But, of course, there was no reason to put that language in 602 because it is perfectly obvious that the regulations authorized by 602 must be designed to protect precisely the same people protected by 601. Moreover, it is self-evident that, linguistic niceties notwithstanding, any statutory provision whose stated purpose is to "effectuate" the eradication of racial and ethnic discrimination has as its "focus" those individuals who, absent such legislation, would be subject to discrimination. 57 Second, the Court repeats the argument advanced and rejected in Cannon that the express provision of a fund cut-off remedy "suggests that Congress intended to preclude others." Ante, at 14. In Cannon, 441 U.S., at 704-708, we carefully explained why the presence of an explicit mechanism to achieve one of the statute's objectives (ensuring that federal funds are not used "to support discriminatory practices") does not preclude a conclusion that a private right of action was intended to achieve the statute's other principal objective ("to provide individual citizens effective protection against those practices"). In support of our analysis, we offered policy arguments, cited evidence from the legislative history, and noted the active support of the relevant agencies. Ibid. In today's decision, the Court does not grapple with-indeed, barely acknowledges-our rejection of this argument in Cannon. 58 Like much else in its opinion, the present majority's unwillingness to explain its refusal to find the reasoning in Cannon persuasive suggests that today's decision is the unconscious product of the majority's profound distaste for implied causes of action rather than an attempt to discern the intent of the Congress that enacted Title VI of the Civil Rights Act of 1964. Its colorful disclaimer of any interest in "venturing beyond Congress's intent," ante, at 11, has a hollow ring. V 59 The question the Court answers today was only an open question in the most technical sense. Given the prevailing consensus in the Courts of Appeals, the Court should have declined to take this case. Having granted certiorari, the Court should have answered the question differently by simply according respect to our prior decisions. But most importantly, even if it were to ignore all of our post-1964 writing, the Court should have answered the question differently on the merits. 60 I respectfully dissent.	22 In 1964, as part of a groundbreaking and comprehensive civil rights Act, Congress prohibited recipients of federal funds from discriminating on the basis of race, ethnicity, or national origin. Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d to 2000d-7. Pursuant to powers expressly delegated by that Act, the federal agencies and departments responsible for awarding and administering federal contracts immediately adopted regulations prohibiting federal contractees from adopting policies that have the "effect" of discriminating on those bases. At the time of the promulgation of these regulations, prevailing principles of statutory construction assumed that Congress intended a private right of action whenever such a cause of action was necessary to protect individual rights granted by valid federal law. Relying both on this presumption and on independent analysis of Title VI, this Court has repeatedly and consistently affirmed the right of private individuals to bring civil suits to enforce rights guaranteed by Title VI. A fair reading of those cases, and coherent implementation of the statutory scheme, requires the same result under Title VI's implementing regulations. 23 In separate lawsuits spanning several decades, we have endorsed an action identical in substance to the one brought in this case, see ; demonstrated that Congress intended a private right of action to protect the rights guaranteed by Title VI, see ; and concluded that private individuals may seek declaratory and injunctive relief against state officials for violations of regulations promulgated pursuant to Title VI, see Giving fair import to our language and our holdings, every Court of Appeals to address the question has concluded that a private right of action exists to enforce the rights guaranteed both by the text of Title VI and by any regulations validly promulgated pursuant to that Title, and Congress has adopted several statutes that appear to ratify the status quo. 24 Today, in a decision unfounded in our precedent and hostile to decades of settled expectations, a majority of this Court carves out an important exception to the right of private action long recognized under Title VI. In so doing, the Court makes three distinct, albeit interrelated, errors. First, the Court provides a muddled account of both the reasoning and the breadth of our prior decisions endorsing a private right of action under Title VI, thereby obscuring the conflict between those opinions and today's decision. Second, the Court offers a flawed and unconvincing analysis of the relationship between 601 and 602 of the Civil Rights Act of 1964, ignoring more plausible and persuasive explanations detailed in our prior opinions. Finally, the Court badly misconstrues the theoretical linchpin of our decision in mistaking that decision's careful contextual analysis for judicial fiat. 25 * The majority is undoubtedly correct that this Court has never said in so many words that a private right of action exists to enforce the disparate-impact regulations promulgated under 602. However, the failure of our cases to state this conclusion explicitly does not absolve the Court of the responsibility to canvass our prior opinions for guidance. Reviewing these opinions with the care they deserve, I reach the same conclusion as the Courts of Appeals: This Court has already considered the question presented today and concluded that a private right of action exists.1 26 When this Court faced an identical case 27 years ago, all the Justices believed that private parties could bring lawsuits under Title VI and its implementing regulations to enjoin the provision of governmental services in a manner that discriminated against non-English speakers. See While five Justices saw no need to go beyond the command of 601, Chief Justice Burger, Justice Stewart, and Justice Blackmun relied specifically and exclusively on the regulations to support the private action, see ; ). There is nothing in the majority's opinion in Lau, or in earlier opinions of the Court, that is not fully consistent with the analysis of the concurring Justices or that would have differentiated between private actions to enforce the text of 601 and private actions to enforce the regulations promulgated pursuant to 602. See (describing this history and noting that, up to that point, no Justice had ever expressed disagreement with Justice Stewart's analysis in Lau).2 27 Five years later, we more explicitly considered whether a private right of action exists to enforce the guarantees of Title VI and its gender-based twin, Title IX. See In that case, we examined the text of the statutes, analyzed the purpose of the laws, and canvassed the relevant legislative history. Our conclusion was unequivocal: "We have no doubt that Congress intended to create Title IX remedies comparable to those available under Title VI and that it understood Title VI as authorizing an implied private cause of action for victims of the prohibited " 28 The majority acknowledges that is binding precedent with regard to both Title VI and Title IX, ante, at 3-4, but seeks to limit the scope of its holding to cases involving allegations of intentional The distinction the majority attempts to impose is wholly foreign to 's text and reasoning. The opinion in consistently treats the question presented in that case as whether a private right of action exists to enforce "Title IX" (and by extension "Title VI"),3 and does not draw any distinctions between the various types of discrimination outlawed by the operation of those statutes. Though the opinion did not reach out to affirmatively preclude the drawing of every conceivable distinction, it could hardly have been more clear as to the scope of its holding: A private right of action exists for "victims of the prohibited " 441 U.S., Not some of the prohibited discrimination, but all of it.4 29 Moreover, was itself a disparate-impact case. In that case, the plaintiff brought suit against two private universities challenging medical school admissions policies that set age limits for applicants. Plaintiff, a 39-year-old woman, alleged that these rules had the effect of discriminating against women because the incidence of interrupted higher education is higher among women than among men. In providing a shorthand description of her claim in the text of the opinion, we ambiguously stated that she had alleged that she was denied admission "because she is a woman," but we appended a lengthy footnote setting forth the details of her disparate-impact claim. Other than the shorthand description of her claim, there is not a word in the text of the opinion even suggesting that she had made the improbable allegation that the University of Chicago and Northwestern University had intentionally discriminated against women. In the context of the entire opinion (including both its analysis and its uncontested description of the facts of the case), that single ambiguous phrase provides no basis for limiting the case's holding to incidents of intentional If anything, the fact that the phrase "because she is a woman" encompasses both intentional and disparate-impact claims should have made it clear that the reasoning in the opinion was equally applicable to both types of claims. In any event, the holding of the case certainly applied to the disparate-impact claim that was described in detail in footnote 1 of the opinion, 30 Our fractured decision in reinforces the conclusion that this issue is effectively settled. While the various opinions in that case took different views as to the spectrum of relief available to plaintiffs in Title VI cases, a clear majority of the Court expressly stated that private parties may seek injunctive relief against governmental practices that have the effect of discriminating against racial and ethnic minorities. ; ; As this case involves just such an action, its result ought to follow naturally from 31 As I read today's opinion, the majority declines to accord precedential value to because the five Justices in the majority were arguably divided over the mechanism through which private parties might seek such injunctive relief.5 This argument inspires two responses. First, to the extent that the majority denies relief to the respondents merely because they neglected to mention 42 U.S.C. 1983 in framing their Title VI claim, this case is something of a sport. Litigants who in the future wish to enforce the Title VI regulations against state actors in all likelihood must only reference 1983 to obtain relief; indeed, the plaintiffs in this case (or other similarly situated individuals) presumably retain the option of re-challenging Alabama's English-only policy in a complaint that invokes 1983 even after today's decision. 32 More important, the majority's reading of is strained even in reference to the broader question whether injunctive relief is available to remedy violations of the Title VI regulations by nongovernmental grantees. As involved an action against a governmental entity, making 1983 relief available, the Court might have discussed the availability of judicial relief without addressing the scope of the implied private right of action available directly under Title VI. See 463 U.S., ("Even if it were not settled by now that Title VI authorizes appropriate relief, both prospective and retroactive, to victims of racial discrimination at the hands of recipients of federal funds, the same result would follow in this case because the petitioners have sought relief under 42 U.S.C. 1983" (emphasis deleted)). However, the analysis in each of the relevant opinions did not do so.6 Rather than focusing on considerations specific to 1983, each of these opinions looked instead to our opinion in to the intent of the Congress that adopted Title VI and the contemporaneous executive decisionmakers who crafted the Disparate-impact regulations, and to general principles of remediation.7 33 In summary, there is clear precedent of this Court for the proposition that the plaintiffs in this case can seek injunctive relief either through an implied right of action or through 1983. Though the holding in does not compel the conclusion that a private right of action exists to enforce the Title VI regulations against private parties, the rationales of the relevant opinions strongly imply that result. When that fact is coupled with our holding in and our unanimous decision in Lau, the answer to the question presented in this case is overdetermined.8 Even absent my continued belief that Congress intended a private right of action to enforce both Title VI and its implementing regulations, I would answer the question presented in the affirmative and affirm the decision of the Court of Appeals as a matter of stare decisis.9 II 34 Underlying the majority's dismissive treatment of our prior cases is a flawed understanding of the structure of Title VI and, more particularly, of the relationship between 601 and 602. To some extent, confusion as to the relationship between the provisions is understandable, as Title VI is a deceptively simple statute. Section 601 of the Act lays out its straightforward commitment: "No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 42 U.S.C. 2000d. Section 602 "authorize[s] and direct[s]" all federal departments and agencies empowered to extend federal financial assistance to issue "rules, regulations, or orders of general applicability" in order to "effectuate" 601's antidiscrimination mandate. 42 U.S.C. 2000d-1.10 35 On the surface, the relationship between 601 and 602 is unproblematic-601 states a basic principle, 602 authorizes agencies to develop detailed plans for defining the contours of the principle and ensuring its enforcement. In the context of federal civil rights law, however, nothing is ever so simple. As actions to enforce 601's antidiscrimination principle have worked their way through the courts, we have developed a body of law giving content to 601's broadly worded commitment. E.g., United ; ; Regents of Univ. of As the majority emphasizes today, the Judiciary's understanding of what conduct may be remedied in actions brought directly under 601 is, in certain ways, more circumscribed than the conduct prohibited by the regulations. See, e.g., ante, at 5. 36 Given that seeming peculiarity, it is necessary to examine closely the relationship between 601 and 602, in order to understand the purpose and import of the regulations at issue in this case. For the most part, however, the majority ignores this task, assuming that the judicial decisions interpreting 601 provide an authoritative interpretation of its true meaning and treating the regulations promulgated by the agencies charged with administering the statute as poor step-cousins-either parroting the text of 601 (in the case of regulations that prohibit intentional discrimination) or forwarding an agenda untethered to 601's mandate (in the case of disparate-impact regulations). 37 The majority's statutory analysis does violence to both the text and the structure of Title VI. Section 601 does not stand in isolation, but rather as part of an integrated remedial scheme. Section 602 exists for the sole purpose of forwarding the antidiscrimination ideals laid out in 601.11 The majority's persistent belief that the two sections somehow forward different agendas finds no support in the statute. Nor does Title VI anywhere suggest, let alone state, that for the purpose of determining their legal effect, the "rules, regulations, [and] orders of general applicability" adopted by the agencies are to be bifurcated by the judiciary into two categories based on how closely the courts believe the regulations track the text of 601. 38 What makes the Court's analysis even more troubling is that our cases have already adopted a simpler and more sensible model for understanding the relationship between the two sections. For three decades, we have treated 602 as granting the responsible agencies the power to issue broad prophylactic rules aimed at realizing the vision laid out in 601, even if the conduct captured by these rules is at times broader than that which would otherwise be prohibited. 39 In Lau, our first Title VI case, the only three Justices whose understanding of 601 required them to reach the question explicitly endorsed the power of the agencies to adopt broad prophylactic rules to enforce the aims of the statute. As Justice Stewart explained, regulations promulgated pursuant to 602 may "go beyond 601" as long as they are "reasonably related" to its antidiscrimination mandate. In at least three Members of the Court adopted a similar understanding of the statute. See Finally, just 16 years ago, our unanimous opinion in treated this understanding of Title VI's structure as settled law. Writing for the Court, Justice Marshall aptly explained the interpretation of 602's grant of regulatory power that necessarily underlies our prior caselaw: "In essence, then, we [have] held that Title VI [has] delegated to the agencies in the first instance the complex determination of what sorts of disparate impacts upon minorities constituted sufficiently significant social problems, and [are] readily enough remediable, to warrant altering the practices of the federal grantees that ha[ve] produced those impacts." at 293- 294. 40 This understanding is firmly rooted in the text of Title VI. As 602 explicitly states, the agencies are authorized to adopt regulations to "effectuate" 601's antidiscrimination mandate. 42 U.S.C. 2000d-1. The plain meaning of the text reveals Congress' intent to provide the relevant agencies with sufficient authority to transform the statute's broad aspiration into social reality. So too does a lengthy, consistent, and impassioned legislative history.12 41 This legislative design reflects a reasonable-indeed inspired-model for attacking the often-intractable problem of racial and ethnic On its own terms, the statute supports an action challenging policies of federal grantees that explicitly or unambiguously violate antidiscrimination norms (such as policies that on their face limit benefits or services to certain races). With regard to more subtle forms of discrimination (such as schemes that limit benefits or services on ostensibly race-neutral grounds but have the predictable and perhaps intended consequence of materially benefiting some races at the expense of others), the statute does not establish a static approach but instead empowers the relevant agencies to evaluate social circumstances to determine whether there is a need for stronger measures.13 Such an approach builds into the law flexibility, an ability to make nuanced assessments of complex social realities, and an admirable willingness to credit the possibility of progress. 42 The "effects" regulations at issue in this case represent the considered judgment of the relevant agencies that discrimination on the basis of race, ethnicity, and national origin by federal contractees are significant social problems that might be remedied, or at least ameliorated, by the application of a broad prophylactic rule. Given the judgment underlying them, the regulations are inspired by, at the service of, and inseparably intertwined with 601's antidiscrimination mandate. Contrary to the majority's suggestion, they "appl[y]" 601's prohibition on discrimination just as surely as the intentional discrimination regulations the majority concedes are privately enforceable. Ante, at 7. 43 To the extent that our prior cases mischaracterize the relationship between 601 and 602, they err on the side of underestimating, not overestimating, the connection between the two provisions. While our cases have explicitly adopted an understanding of 601's scope that is somewhat narrower than the reach of the regulations,14 they have done so in an unorthodox and somewhat haphazard fashion. 44 Our conclusion that the legislation only encompasses intentional discrimination was never the subject of thorough consideration by a Court focused on that question. In Bakke, five Members of this Court concluded that 601 only prohibits race-based affirmative action programs in situations where the Equal Protection Clause would impose a similar ban. ;15 In the majority of the Court held that the analysis of those five Justices in Bakke compelled as a matter of stare decisis the conclusion that 601 does not on its own terms reach disparate impact cases. -611 ; ; However, the opinions adopting that conclusion did not engage in any independent analysis of the reach of 601. Indeed, the only writing on this subject came from two of the five Members of the Bakke "majority," each of whom wrote separately to reject the remaining Justices' understanding of their opinions in Bakke and to insist that 601 does in fact reach some instances of unintentional -590 ;16 The Court's occasional rote invocation of this majority in later cases ought not obscure the fact that the question whether 601 applies to disparate-impact claims has never been analyzed by this Court on the merits.17 45 In addition, these Title VI cases seemingly ignore the well-established principle of administrative law that is now most often described as the "Chevron doctrine." See Chevron U.S. A. In most other contexts, when the agencies charged with administering a broadly-worded statute offer regulations interpreting that statute or giving concrete guidance as to its implementation, we treat their interpretation of the statute's breadth as controlling unless it presents an unreasonable construction of the statutory text. See While there may be some dispute as to the boundaries of Chevron deference, see, e.g., it is paradigmatically appropriate when Congress has clearly delegated agencies the power to issue regulations with the force of law and established formal procedures for the promulgation of such regulations.18 46 If we were writing on a blank slate, we might very well conclude that Chevron and similar cases decided both before and after provide the proper framework for understanding the structure of Title VI. Under such a reading there would be no incongruity between 601 and 602. Instead, we would read 602 as granting the federal agencies responsible for distributing federal funds the authority to issue regulations interpreting 601 on the assumption that their construction will-if reasonable-be incorporated into our understanding of 601's meaning.19 47 To resolve this case, however, it is unnecessary to answer the question whether our cases interpreting the reach of 601 should be reinterpreted in light of Chevron. If one understands the relationship between 601 and 602 through the prism of either Chevron or our prior Title VI cases, the question presented all but answers itself. If the regulations promulgated pursuant to 602 are either an authoritative construction of 601's meaning or prophylactic rules necessary to actualize the goals enunciated in 601, then it makes no sense to differentiate between private actions to enforce 601 and private actions to enforce 602. There is but one private action to enforce Title VI, and we already know that such an action exists.20 See 441 U.S., III 48 The majority couples its flawed analysis of the structure of Title VI with an uncharitable understanding of the substance of the divide between those on this Court who are reluctant to interpret statutes to allow for private rights of action and those who are willing to do so if the claim of right survives a rigorous application of the criteria set forth in As the majority narrates our implied right of action jurisprudence, ante, at 10-11, the Court's shift to a more skeptical approach represents the rejection of a common-law judicial activism in favor of a principled recognition of the limited role of a contemporary "federal tribunal." Ante, at 10. According to its analysis, the recognition of an implied right of action when the text and structure of the statute do not absolutely compel such a conclusion is an act of judicial self-indulgence. As much as we would like to help those disadvantaged by discrimination, we must resist the temptation to pour ourselves "one last drink." Ante, at 11. To do otherwise would be to "ventur[e] beyond Congress's intent." 49 Overwrought imagery aside, it is the majority's approach that blinds itself to congressional intent. While it remains true that, if Congress intends a private right of action to support statutory rights, "the far better course is for it to specify as much when it creates those rights," its failure to do so does not absolve us of the responsibility to endeavor to discern its intent. In a series of cases since we have laid out rules and developed strategies for this task. 50 The very existence of these rules and strategies assumes that we will sometimes find manifestations of an implicit intent to create such a right. Our decision in represents one such occasion. As the opinion iterated and reiterated, the question whether the plaintiff had a right of action that could be asserted in federal court was a "question of statutory construction," 441 U. S, at 688, see also not a question of policy for the Court to decide. Applying the factors, we examined the nature of the rights at issue, the text and structure of the statute, and the relevant legislative history. Our conclusion was that Congress unmistakably intended a private right of action to enforce both Title IX and Title VI. Our reasoning-and, as I have demonstrated, our holding-was equally applicable to intentional discrimination and disparate impact claims.22 51 Underlying today's opinion is the conviction that must be cabined because it exemplifies an "expansive rights-creating approach." But, as I have taken pains to explain, it was Congress, not the Court, that created the cause of action, and it was the Congress that later ratified the holding in 1986 and again in See -73. 52 In order to impose its own preferences as to the availability of judicial remedies, the Court today adopts a methodology that blinds itself to important evidence of congressional intent. It is one thing for the Court to ignore the import of our holding in as the breadth of that precedent is a matter upon which reasonable jurists may differ. It is entirely another thing for the majority to ignore the reasoning of that opinion and the evidence contained therein, as those arguments and that evidence speak directly to the question at issue today. As I stated above, see n. carefully explained that both Title VI and Title IX were intended to benefit a particular class of individuals, that the purposes of the statutes would be furthered rather than frustrated by the implication of a private right of action, and that the legislative histories of the statutes support the conclusion that Congress intended such a right. See also Part IV, infra. Those conclusions and the evidence supporting them continue to have force today. 53 Similarly, if the majority is genuinely committed to deciphering congressional intent, its unwillingness to even consider evidence as to the context in which Congress legislated is perplexing. Congress does not legislate in a vacuum. As the respondent and the Government suggest, and as we have held several times, the objective manifestations of congressional intent to create a private right of action must be measured in light of the enacting Congress' expectations as to how the judiciary might evaluate the question. See ; Merrill Pierce, Fenner & Smith, ; -699.23 54 At the time Congress was considering Title VI, it was normal practice for the courts to infer that Congress intended a private right of action whenever it passed a statute designed to protect a particular class that did not contain enforcement mechanisms which would be thwarted by a private remedy. See Merrill -375 Indeed, the very year Congress adopted Title VI, this Court specifically stated that "it is the duty of the courts to be alert to provide such remedies as are necessary to make effective the congressional purpose." J. I. Case 3 U.S. 426, Assuming, as we must, that Congress was fully informed as to the state of the law, the contemporary context presents important evidence as to Congress' intent-evidence the majority declines to consider. 55 Ultimately, respect for Congress' prerogatives is measured in deeds, not words. Today, the Court coins a new rule, holding that a private cause of action to enforce a statute does not encompass a substantive regulation issued to effectuate that statute unless the regulation does nothing more than "authoritatively construe the statute itself." Ante, at 7.24 This rule might be proper if we were the kind of "common-law court" the majority decries, ante, at 10, inventing private rights of action never intended by Congress. For if we are not construing a statute, we certainly may refuse to create a remedy for violations of federal regulations. But if we are faithful to the commitment to discerning congressional intent that all Members of this Court profess, the distinction is untenable. There is simply no reason to assume that Congress contemplated, desired, or adopted a distinction between regulations that merely parrot statutory text and broader regulations that are authorized by statutory text.25 IV 56 Beyond its flawed structural analysis of Title VI and an evident antipathy toward implied rights of action, the majority offers little affirmative support for its conclusion that Congress did not intend to create a private remedy for violations of the Title VI regulations.26 The Court offers essentially two reasons for its position. First, it attaches significance to the fact that the "rights-creating" language in 601 that defines the classes protected by the statute is not repeated in 602. Ante, at 13-14. But, of course, there was no reason to put that language in 602 because it is perfectly obvious that the regulations authorized by 602 must be designed to protect precisely the same people protected by 601. Moreover, it is self-evident that, linguistic niceties notwithstanding, any statutory provision whose stated purpose is to "effectuate" the eradication of racial and ethnic discrimination has as its "focus" those individuals who, absent such legislation, would be subject to 57 Second, the Court repeats the argument advanced and rejected in that the express provision of a fund cut-off remedy "suggests that Congress intended to preclude others." Ante, at 14. In -708, we carefully explained why the presence of an explicit mechanism to achieve one of the statute's objectives (ensuring that federal funds are not used "to support discriminatory practices") does not preclude a conclusion that a private right of action was intended to achieve the statute's other principal objective ("to provide individual citizens effective protection against those practices"). In support of our analysis, we offered policy arguments, cited evidence from the legislative history, and noted the active support of the relevant agencies. In today's decision, the Court does not grapple with-indeed, barely acknowledges-our rejection of this argument in 58 Like much else in its opinion, the present majority's unwillingness to explain its refusal to find the reasoning in persuasive suggests that today's decision is the unconscious product of the majority's profound distaste for implied causes of action rather than an attempt to discern the intent of the Congress that enacted Title VI of the Civil Rights Act of 1964. Its colorful disclaimer of any interest in "venturing beyond Congress's intent," ante, at 11, has a hollow ring. V 59 The question the Court answers today was only an open question in the most technical sense. Given the prevailing consensus in the Courts of Appeals, the Court should have declined to take this case. Having granted certiorari, the Court should have answered the question differently by simply according respect to our prior decisions. But most importantly, even if it were to ignore all of our post-1964 writing, the Court should have answered the question differently on the merits. 60 I respectfully dissent.	1,893
Justice Rehnquist	majority	false	Kowalski v. Tesmer	2004-12-13	null	https://www.courtlistener.com/opinion/137732/kowalski-v-tesmer/	https://www.courtlistener.com/api/rest/v3/clusters/137732/	2,004	2004-008	1	6	3	This case involves a constitutional challenge to Michigan's procedure for appointing appellate counsel for indigent defendants who plead guilty. The only challengers before us are two attorneys who seek to invoke the rights of hypothetical indigents to challenge the procedure. We hold that the attorneys lack standing and therefore do not reach the question of the procedure's constitutionality. In 1994, Michigan amended its Constitution to provide that "an appeal by an accused who pleads guilty or nolo contendere shall be by leave of the court" and not as of right. Mich. Const., Art. I, § 20. Following this amendment, several Michigan state judges began to deny appointed appellate counsel to indigents who pleaded guilty, and the Michigan Legislature subsequently codified this practice.[1] See Mich. Comp. Laws Ann. § 770.3a (West 2000). Under the statute, 128 which was scheduled to go into effect on April 1, 2000, appointment of appellate counsel for indigents who plead guilty is prohibited, with certain mandatory and permissive exceptions. Ibid. A challenge to the Michigan practice was filed in the United States District Court for the Eastern District of Michigan. The named plaintiffs included the two attorney respondents and three indigents who were denied appellate counsel after pleading guilty. Pursuant to Rev. Stat. § 1979, 42 U.S. C. § 1983, they alleged that the Michigan practice and statute denied indigents their federal constitutional rights to due process and equal protection. They sought declaratory and injunctive relief against the practice and the statute. A day before the statute was to take effect, the District Court issued an order holding the practice and statute unconstitutional. Tesmer v. Granholm, 114 F. Supp. 2d 603 (2000). It ultimately issued an injunction that bound all Michigan state judges, requiring them not to deny appellate counsel to any indigent who pleaded guilty. 114 F. Supp. 2d 622 (2000). A panel of the Court of Appeals for the Sixth Circuit reversed. Tesmer v. Granholm, 295 F.3d 536 (2002). The panel held that Younger v. Harris, 401 U.S. 37 (1971), abstention barred the suit by the indigents but that the attorneys had third-party standing to assert the rights of indigents. It then held that the statute was constitutional. The Court of Appeals granted rehearing en banc and reversed. Tesmer v. Granholm, 333 F.3d 683 (2003). The en banc majority agreed with the panel on standing but found that the statute was unconstitutional. Separate dissents were filed, challenging the application of third-party standing and the holding that the statute was unconstitutional. We granted certiorari. 540 U.S. 1148 (2004). The doctrine of standing asks whether a litigant is entitled to have a federal court resolve his grievance. This inquiry involves "both constitutional limitations on federal-court jurisdiction and prudential limitations on its exercise." Warth 129 v. Seldin, 422 U.S. 490, 498 (1975). In this case, we do not focus on the constitutional minimum of standing, which flows from Article III's case-or-controversy requirement. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). Instead, we shall assume the attorneys have satisfied Article III and address the alternative threshold question whether they have standing to raise the rights of others. See Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 585 (1999).[2] We have adhered to the rule that a party "generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties." Warth v. Seldin, supra, at 499. This rule assumes that the party with the right has the appropriate incentive to challenge (or not challenge) governmental action and to do so with the necessary zeal and appropriate presentation. See 422 U.S., at 500. It represents a "healthy concern that if the claim is brought by someone other than one at whom the constitutional protection is aimed," Secretary of State of Md. v. Joseph H. Munson Co., 467 U.S. 947, 955, n. 5 (1984), the courts might be "called upon to decide abstract questions of wide public significance even though other governmental institutions may be more competent to address the questions and even though judicial intervention may be unnecessary to protect individual rights," Warth v. Seldin, supra, at 500. We have not treated this rule as absolute, however, recognizing that there may be circumstances where it is necessary 130 to grant a third party standing to assert the rights of another. But we have limited this exception by requiring that a party seeking third-party standing make two additional showings. First, we have asked whether the party asserting the right has a "close" relationship with the person who possesses the right. Powers v. Ohio, 499 U.S. 400, 411 (1991). Second, we have considered whether there is a "hindrance" to the possessor's ability to protect his own interests. Ibid. We have been quite forgiving with these criteria in certain circumstances. "Within the context of the First Amendment," for example, "the Court has enunciated other concerns that justify a lessening of prudential limitations on standing." Secretary of State of Md. v. Joseph H. Munson Co., supra, at 956. And "[i]n several cases, this Court has allowed standing to litigate the rights of third parties when enforcement of the challenged restriction against the litigant would result indirectly in the violation of third parties' rights." Warth v. Seldin, supra, at 510 (emphasis added) (citing Doe v. Bolton, 410 U.S. 179 (1973); Griswold v. Connecticut, 381 U.S. 479 (1965); Barrows v. Jackson, 346 U.S. 249 (1953)); see Craig v. Boren, 429 U.S. 190 (1976). Beyond these examples none of which is implicated here we have not looked favorably upon third-party standing. See, e. g., Conn v. Gabbert, 526 U.S. 286, 292-293 (1999) (rejecting an attorney's attempt to adjudicate the rights of a client). With this in mind, we turn to apply our "close relationship" and "hindrance" criteria to the facts before us. The attorneys in this case invoke the attorney-client relationship to demonstrate the requisite closeness. Specifically, they rely on a future attorney-client relationship with as yet unascertained Michigan criminal defendants "who will request, but be denied, the appointment of appellate counsel, based on the operation" of the statute. App. 17a, ¶ 37 (Complaint). In two cases, we have recognized an attorney-client relationship as sufficient to confer third-party standing. 131 See Caplin & Drysdale, Chartered v. United States, 491 U.S. 617 (1989); Department of Labor v. Triplett, 494 U.S. 715 (1990). In Caplin & Drysdale, Chartered v. United States, supra, we granted a law firm third-party standing to challenge a drug forfeiture statute by invoking the rights of an existing client. Id., at 624, n. 3. This existing attorney-client relationship is, of course, quite distinct from the hypothetical attorney-client relationship posited here. In Department of Labor v. Triplett, supra, we dealt with the Black Lung Benefits Act of 1972, which prohibited attorneys from accepting fees for representing claimants, unless such fees were approved by the appropriate agency or court. 30 U.S. C. § 932(a) (1982 ed., Supp. V). An attorney, George Triplett, violated the Act and its implementing regulations by agreeing to represent claimants for 25% of any award obtained and then collecting those fees without the required approval. The state bar disciplined Triplett, and we allowed Triplett third-party standing to invoke the due process rights of the claimants to challenge the fee restriction that resulted in his punishment. 494 U.S., at 720-721. Triplett is different from this case on two levels. First, Triplett falls within that class of cases where we have "allowed standing to litigate the rights of third parties when enforcement of the challenged restriction against the litigant would result indirectly in the violation of third parties' rights." Warth v. Seldin, supra, at 510 (emphasis added). Second, and similar to Caplin & Drysdale, Triplett involved the representation of known claimants. The attorneys before us do not have a "close relationship" with their alleged "clients"; indeed, they have no relationship at all. We next consider whether the attorneys have demonstrated that there is a "hindrance" to the indigents' advancing their own constitutional rights against the Michigan scheme. Powers v. Ohio, supra, at 411. It is uncontested that an indigent denied appellate counsel has open avenues to argue that denial deprives him of his constitutional rights. 132 He may seek leave to challenge that denial in the Michigan Court of Appeals and, if denied, seek leave in the Michigan Supreme Court. See Mich. Comp. Laws Ann. § 770.3 (West Supp. 2004). He then may seek a writ of certiorari in this Court. See 28 U.S. C. § 1257(a). Beyond that, there exists both state and federal collateral review. See Mich. Rule Crim. Proc. 6.500 (2004); 28 U.S. C. § 2254. The attorneys argue that, without counsel, these avenues are effectively foreclosed to indigents. They claim that unsophisticated, pro se criminal defendants could not satisfy the necessary procedural requirements, and, if they did, they would be unable to coherently advance the substance of their constitutional claim. That hypothesis, however, was disproved in the Michigan courts, see, e. g., People v. Jackson, 463 Mich. 949, 620 N.W.2d 528 (2001) (pro se defendant sought leave to appeal denial of appointment of appellate counsel to the Michigan Court of Appeals and the Michigan Supreme Court); People v. Wilkins, 463 Mich. 949, 620 N.W.2d 528 (2001) (same), and this Court, see Pet. for Cert. in Halbert v. Michigan, O. T. 2004, No. 03-10198 (pending request for writ of certiorari by a pro se defendant challenging the denial of appellate counsel). While we agree that an attorney would be valuable to a criminal defendant challenging the constitutionality of the scheme, we do not think that the lack of an attorney here is the type of hindrance necessary to allow another to assert the indigent defendants' rights. See Powers v. Ohio, supra, at 411. We also are unpersuaded by the attorneys' "hindrance" argument on a more fundamental level. If an attorney is all that the indigents need to perfect their challenge in state court and beyond, one wonders why the attorneys asserting this § 1983 action did not attend state court and assist them. We inquired into this question at oral argument but did not receive a satisfactory answer. See Tr. of Oral Arg. 28-29, 35-40. It is a fair inference that the attorneys and the three 133 indigent plaintiffs that filed this § 1983 action did not want to allow the state process to take its course. Rather, they wanted a federal court to short circuit the State's adjudication of this constitutional question. That is precisely what they got. "[F]ederal and state courts are complementary systems for administering justice in our Nation. Cooperation and comity, not competition and conflict, are essential to the federal design." Ruhrgas AG v. Marathon Oil Co., 526 U. S., at 586. The doctrine of Younger v. Harris, 401 U.S. 37 (1971), reinforces our federal scheme by preventing a state criminal defendant from asserting ancillary challenges to ongoing state criminal procedures in federal court. Id., at 54-55. In this case, the three indigent criminal defendants who were originally plaintiffs in this § 1983 action were appropriately dismissed under Younger. As the Court of Appeals unanimously recognized, they had ongoing state criminal proceedings and ample avenues to raise their constitutional challenge in those proceedings.[3] 333 F. 3d, at 690-691. There also was no extraordinary circumstance requiring federal intervention. Ibid. An unwillingness to allow the Younger principle to be thus circumvented is an additional reason to deny the attorneys third-party standing.[4] *134 In sum, we hold that the attorneys do not have third-party standing to assert the rights of Michigan indigent defendants denied appellate counsel. We agree with the dissenting opinion in the Court of Appeals that "it would be a short step from the . . . grant of third-party standing in this case to a holding that lawyers generally have third-party standing to bring in court the claims of future unascertained clients."[5] 333 F. 3d, at 709 (Rogers, J., concurring in part and dissenting in part). The judgment of the Court of Appeals is therefore reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.	This case involves a constitutional challenge to Michigan's procedure for appointing appellate counsel for indigent defendants who plead guilty. The only challengers before us are two attorneys who seek to invoke the rights of hypothetical indigents to challenge the procedure. We hold that the attorneys lack standing and therefore do not reach the question of the procedure's constitutionality. In 1994, Michigan amended its Constitution to provide that "an appeal by an accused who pleads guilty or nolo contendere shall be by leave of the court" and not as of right. Mich. Const., Art. I, 20. Following this amendment, several Michigan state judges began to deny appointed appellate counsel to indigents who pleaded guilty, and the Michigan Legislature subsequently codified this practice.[1] See Mich. Comp. Laws Ann. 770.3a Under the statute, 128 which was scheduled to go into effect on April 1, appointment of appellate counsel for indigents who plead guilty is prohibited, with certain mandatory and permissive exceptions. A challenge to the Michigan practice was filed in the United District Court for the Eastern District of Michigan. The named plaintiffs included the two attorney respondents and three indigents who were denied appellate counsel after pleading guilty. Pursuant to Rev. Stat. 1979, 42 U.S. C. 1983, they alleged that the Michigan practice and statute denied indigents their federal constitutional rights to due process and equal protection. They sought declaratory and injunctive relief against the practice and the statute. A day before the statute was to take effect, the District Court issued an order holding the practice and statute unconstitutional. It ultimately issued an injunction that bound all Michigan state judges, requiring them not to deny appellate counsel to any indigent who pleaded guilty. A panel of the Court of Appeals for the Sixth Circuit reversed. The panel held that abstention barred the suit by the indigents but that the attorneys had third-party standing to assert the rights of indigents. It then held that the statute was constitutional. The Court of Appeals granted rehearing en banc and reversed. The en banc majority agreed with the panel on standing but found that the statute was unconstitutional. Separate dissents were filed, challenging the application of third-party standing and the holding that the statute was unconstitutional. We granted certiorari. The doctrine of standing asks whether a litigant is entitled to have a federal court resolve his grievance. This inquiry involves "both constitutional limitations on federal-court jurisdiction and prudential limitations on its exercise." Warth In this case, we do not focus on the constitutional minimum of standing, which flows from Article III's case-or-controversy requirement. See Instead, we shall assume the attorneys have satisfied Article III and address the alternative threshold question whether they have standing to raise the rights of others. See Ruhrgas[2] We have adhered to the rule that a party "generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties." Warth v. This rule assumes that the party with the right has the appropriate incentive to challenge (or not challenge) governmental action and to do so with the necessary zeal and appropriate presentation. See It represents a "healthy concern that if the claim is brought by someone other than one at whom the constitutional protection is aimed," Secretary of State of the courts might be "called upon to decide abstract questions of wide public significance even though other governmental institutions may be more competent to address the questions and even though judicial intervention may be unnecessary to protect individual rights," Warth v. We have not treated this rule as absolute, however, recognizing that there may be circumstances where it is necessary 130 to grant a third party standing to assert the rights of another. But we have limited this exception by requiring that a party seeking third-party standing make two additional showings. First, we have asked whether the party asserting the right has a "close" relationship with the person who possesses the right. Second, we have considered whether there is a "hindrance" to the possessor's ability to protect his own interests. We have been quite forgiving with these criteria in certain circumstances. "Within the context of the First Amendment," for example, "the Court has enunciated other concerns that justify a lessening of prudential limitations on standing." Secretary of State of And "[i]n several cases, this Court has allowed standing to litigate the rights of third parties when enforcement of the challenged restriction against the litigant would result indirectly in the violation of third parties' rights." Warth v. ; ; ); see Beyond these examples none of which is implicated here we have not looked favorably upon third-party standing. See, e. g., With this in mind, we turn to apply our "close relationship" and "hindrance" criteria to the facts before us. The attorneys in this case invoke the attorney-client relationship to demonstrate the requisite closeness. Specifically, they rely on a future attorney-client relationship with as yet unascertained Michigan criminal defendants "who will request, but be denied, the appointment of appellate counsel, based on the operation" of the statute. App. 17a, ¶ 37 (Complaint). In two cases, we have recognized an attorney-client relationship as sufficient to confer third-party standing. 131 See Caplin & Drysdale, ; Department of In Caplin & Drysdale, we granted a law firm third-party standing to challenge a drug forfeiture statute by invoking the rights of an existing client. This existing attorney-client relationship is, of course, quite distinct from the hypothetical attorney-client relationship posited here. In Department of we dealt with the Black Lung Benefits Act of 1972, which prohibited attorneys from accepting fees for representing claimants, unless such fees were approved by the appropriate agency or court. 30 U.S. C. 932(a) (1982 ed., Supp. V). An attorney, George violated the Act and its implementing regulations by agreeing to represent claimants for 25% of any award obtained and then collecting those fees without the required approval. The state bar disciplined and we allowed third-party standing to invoke the due process rights of the claimants to challenge the fee restriction that resulted in his -721. is different from this case on two levels. First, falls within that class of cases where we have "allowed standing to litigate the rights of third parties when enforcement of the challenged restriction against the litigant would result indirectly in the violation of third parties' rights." Warth v. Second, and similar to Caplin & Drysdale, involved the representation of known claimants. The attorneys before us do not have a "close relationship" with their alleged "clients"; indeed, they have no relationship at all. We next consider whether the attorneys have demonstrated that there is a "hindrance" to the indigents' advancing their own constitutional rights against the Michigan scheme. at It is uncontested that an indigent denied appellate counsel has open avenues to argue that denial deprives him of his constitutional rights. 132 He may seek leave to challenge that denial in the Michigan Court of Appeals and, if denied, seek leave in the Michigan Supreme Court. See Mich. Comp. Laws Ann. 770.3 He then may seek a writ of certiorari in this Court. See 28 U.S. C. 1257(a). Beyond that, there exists both state and federal collateral review. See Mich. Rule Crim. Proc. 6.500 ; 28 U.S. C. 2254. The attorneys argue that, without counsel, these avenues are effectively foreclosed to indigents. They claim that unsophisticated, pro se criminal defendants could not satisfy the necessary procedural requirements, and, if they did, they would be unable to coherently advance the substance of their constitutional claim. That hypothesis, however, was disproved in the Michigan courts, see, e. g., ; and this Court, see Pet. for Cert. in Halbert v. Michigan, O. T. 2004, No. 03-10198 (pending request for writ of certiorari by a pro se defendant challenging the denial of appellate counsel). While we agree that an attorney would be valuable to a criminal defendant challenging the constitutionality of the scheme, we do not think that the lack of an attorney here is the type of hindrance necessary to allow another to assert the indigent defendants' rights. See at We also are unpersuaded by the attorneys' "hindrance" argument on a more fundamental level. If an attorney is all that the indigents need to perfect their challenge in state court and beyond, one wonders why the attorneys asserting this 1983 action did not attend state court and assist them. We inquired into this question at oral argument but did not receive a satisfactory answer. See Tr. of Oral Arg. 28-29, 35-40. It is a fair inference that the attorneys and the three 133 indigent plaintiffs that filed this 1983 action did not want to allow the state process to take its course. Rather, they wanted a federal court to short circuit the State's adjudication of this constitutional question. That is precisely what they got. "[F]ederal and state courts are complementary systems for administering justice in our Nation. Cooperation and comity, not competition and conflict, are essential to the federal design." Ruhrgas The doctrine of reinforces our federal scheme by preventing a state criminal defendant from asserting ancillary challenges to ongoing state criminal procedures in federal court. In this case, the three indigent criminal defendants who were originally plaintiffs in this 1983 action were appropriately dismissed under Younger. As the Court of Appeals unanimously recognized, they had ongoing state criminal proceedings and ample avenues to raise their constitutional challenge in those proceedings.[3] -691. There also was no extraordinary circumstance requiring federal intervention. An unwillingness to allow the Younger principle to be thus circumvented is an additional reason to deny the attorneys third-party standing.[4] 134 In sum, we hold that the attorneys do not have third-party standing to assert the rights of Michigan indigent defendants denied appellate counsel. We agree with the dissenting opinion in the Court of Appeals that "it would be a short step from the grant of third-party standing in this case to a holding that lawyers generally have third-party standing to bring in court the claims of future unascertained clients."[5] The judgment of the Court of Appeals is therefore reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.	1,898
Justice Thomas	concurring	false	Kowalski v. Tesmer	2004-12-13	null	https://www.courtlistener.com/opinion/137732/kowalski-v-tesmer/	https://www.courtlistener.com/api/rest/v3/clusters/137732/	2,004	2004-008	1	6	3	That this case is even remotely close demonstrates that our third-party standing cases have gone far astray. We have granted third-party standing in a number of cases to litigants whose relationships with the directly affected individuals were at best remote. We have held, for instance, that beer vendors have standing to raise the rights of their prospective young male customers, see Craig v. Boren, 429 U.S. 190, 192-197 (1976); that criminal defendants have standing to raise the rights of jurors excluded from service, 135 see Powers v. Ohio, 499 U.S. 400, 410-416 (1991); that sellers of mail-order contraceptives have standing to assert the rights of potential customers, see Carey v. Population Services Int'l, 431 U.S. 678, 682-684 (1977); that distributors of contraceptives to unmarried persons have standing to litigate the rights of the potential recipients, Eisenstadt v. Baird, 405 U.S. 438, 443-446 (1972); and that white sellers of land have standing to litigate the constitutional rights of potential black purchasers, see Barrows v. Jackson, 346 U.S. 249, 254-258 (1953). I agree with the Court that "[t]he attorneys before us do not have a `close relationship' with their alleged `clients'; indeed, they have no relationship at all." Ante, at 131. The Court of Appeals understandably could have thought otherwise, given how generously our precedents have awarded third-party standing. It is doubtful whether a party who has no personal constitutional right at stake in a case should ever be allowed to litigate the constitutional rights of others. Before Truax v. Raich, 239 U.S. 33, 38-39 (1915), and Pierce v. Society of Sisters, 268 U.S. 510, 535-536 (1925), this Court adhered to the rule that "[a] court will not listen to an objection made to the constitutionality of an act by a party whose rights it does not affect and who has therefore no interest in defeating it." Clark v. Kansas City, 176 U.S. 114, 118 (1900) (internal quotation marks omitted).[] This made sense. Litigants who have no personal right at stake may have very different interests from the individuals whose rights they are raising. Moreover, absent a personal right, a litigant has no cause of action (or defense), and thus no right to relief. It may be too late in the day to return to this traditional view. But even assuming it makes sense to grant litigants *136 third-party standing in at least some cases, it is more doubtful still whether third-party standing should sweep as broadly as our cases have held that it does. Because the Court's opinion is a reasonable application of our precedents, I join it in full.	That this case is even remotely close demonstrates that our third-party standing cases have gone far astray. We have granted third-party standing in a number of cases to litigants whose relationships with the directly affected individuals were at best remote. We have held, for instance, that beer vendors have standing to raise the rights of their prospective young male customers, see ; that criminal defendants have standing to raise the rights of jurors excluded from service, 135 see ; that sellers of mail-order contraceptives have standing to assert the rights of potential customers, see ; that distributors of contraceptives to unmarried persons have standing to litigate the rights of the potential recipients, ; and that white sellers of land have standing to litigate the constitutional rights of potential black purchasers, see I agree with the Court that "[t]he attorneys before us do not have a `close relationship' with their alleged `clients'; indeed, they have no relationship at all." Ante, at 131. The Court of Appeals understandably could have thought otherwise, given how generously our precedents have awarded third-party standing. It is doubtful whether a party who has no personal constitutional right at stake in a case should ever be allowed to litigate the constitutional rights of others. Before and this Court adhered to the rule that "[a] court will not listen to an objection made to the constitutionality of an act by a party whose rights it does not affect and who has therefore no interest in defeating it."[] This made sense. Litigants who have no personal right at stake may have very different interests from the individuals whose rights they are raising. Moreover, absent a personal right, a litigant has no cause of action (or defense), and thus no right to relief. It may be too late in the day to return to this traditional view. But even assuming it makes sense to grant litigants *136 third-party standing in at least some cases, it is more doubtful still whether third-party standing should sweep as broadly as our cases have held that it does. Because the Court's opinion is a reasonable application of our precedents, I join it in full.	1,899
Justice Ginsburg	dissenting	false	Kowalski v. Tesmer	2004-12-13	null	https://www.courtlistener.com/opinion/137732/kowalski-v-tesmer/	https://www.courtlistener.com/api/rest/v3/clusters/137732/	2,004	2004-008	1	6	3	Plaintiffs-respondents Arthur M. Fitzgerald and Michael D. Vogler are Michigan attorneys who have routinely received appointments to represent defendants in state-court criminal appeals, including appeals from plea-based convictions. They assert third-party standing to challenge a state law limiting an indigent's right to counsel: As codified in Mich. Comp. Laws Ann. § 770.3a(1) (West 2000), the challenged law prescribes that most indigents "who plea[d] guilty, guilty but mentally ill, or nolo contendere shall not have appellate counsel appointed for review of the defendant's conviction or sentence." The attorneys before us emphasize that indigent defendants generally are unable to navigate the appellate process pro se. In view of that reality, the attorneys brought this action under 42 U.S. C. § 1983, to advance indigent defendants' constitutional right to counsel's aid in pursuing appeals from plea-based convictions. "Ordinarily," attorneys Fitzgerald and Vogler acknowledge, "one may not claim standing . . . to vindicate the constitutional rights of [a] third party." Barrows v. Jackson, 346 U.S. 249, 255 (1953). The Court has recognized exceptions to the general rule, however, when certain circumstances combine: (1) "The litigant [has] suffered an `injury in fact,' . . . giving him or her a `sufficiently concrete interest' in the outcome of the issue in dispute"; (2) "the litigant [has] a close relation to the third party"; and (3) "there [exists] some hindrance to the third party's ability to protect his or her own interests." Powers v. Ohio, 499 U.S. 400, 411 (1991) (quoting 137 Singleton v. Wulff, 428 U.S. 106, 112 (1976)). The first requirement is of a different order than the second and third, for whether a litigant meets the constitutional prescription of injury in fact determines whether his suit is "a case or controversy subject to a federal court's Art. III jurisdiction." Ibid. By contrast, the close relation and hindrance criteria are "prudential considerations," Secretary of State of Md. v. Joseph H. Munson Co., 467 U.S. 947, 955 (1984), "judge made rule[s] . . . fashion[ed] for our own governance," id., at 972 (STEVENS, J., concurring). Our precedent leaves scant room for doubt that attorneys Fitzgerald and Vogler have shown both injury in fact, and the requisite close relation to indigent defendants who seek the assistance of counsel to appeal from plea-based convictions. I conclude, as well, that those attorneys have demonstrated a formidable hindrance to the indigents' ability to proceed without the aid of counsel. As to injury in fact, attorneys Fitzgerald and Vogler alleged in their complaint that Mich. Comp. Laws Ann. § 770.3a would cause them direct economic loss because it will "reduc[e] the number of cases in which they could be appointed and paid as assigned appellate counsel." App. 16a. This allegation is hardly debatable. The Michigan system for assigning appellate attorneys to indigent defendants operates on a strict rotation. With fewer cases to be assigned under the new statute, the pace of the rotation would slow, and Fitzgerald and Vogler, who are on the rosters for assignment, would earn less for representation of indigent appellants than they earned in years prior to the cutback on state-funded appeals.[1] 138 In Singleton, 428 U.S. 106, two physicians challenged state restrictions imposed on funding for abortions. Eight Members of this Court determined that the physicians had adequately alleged concrete injury: "If the physicians prevail[ed] in their suit . . . they [would] then receive payment . . . [and t]he State (and Federal Government) [would] be out of pocket by the amount of the payments." Id., at 113; see id., at 122-123 (Powell, J., concurring as to injury in fact). Inescapably, the same reasoning applies to attorneys Fitzgerald and Vogler. They have alleged their past, state-paid representation of indigent defendants in appeals from plea-based convictions, and their aim to continue such representation in the future. As in Singleton, they will suffer injury "concrete and particularized[,] . . . actual or imminent, not conjectural or hypothetical," Friends of Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 180 (2000), if Michigan's statute holds sway. See generally R. Fallon, D. Meltzer, & D. Shapiro, Hart and Wechsler's The Federal Courts and the Federal System 177-178, and n. 5 (5th ed. 2003). Nor, under our precedent, should attorneys Fitzgerald and Vogler encounter a "close relation" shoal. Our prior decisions do not warrant the distinction between an "existing" relationship and a "hypothetical" relationship that the Court advances today. Ante, at 131. See, e. g., Carey v. Population Services Int'l, 431 U.S. 678, 683 (1977) (corporate distributor of contraceptives could challenge state law limiting sale of its products, "not only in its own right but also on behalf of its potential customers" (emphasis added)); Griswold v. Connecticut, 381 U.S. 479, 481 (1965) (noting that in Pierce v. Society of Sisters, 268 U.S. 510 (1925), "the owners of private schools were entitled to assert the rights of potential pupils and their parents," and in Barrows, "a white defendant . . . was allowed to raise . . . the rights of prospective Negro purchasers" (emphases added)). 139 Without suggesting that the timing of a relationship is key, the Court's decisions have focused on the character of the relationship between the litigant and the rightholder. See Munson, 467 U. S., at 973 (STEVENS, J., concurring) (propriety of third-party standing depends on "the nature of the relationship"). Singleton, for example, acknowledged the significant bond between physician and patient. See 428 U.S., at 117 (plurality opinion) ("[T]he physician is uniquely qualified to litigate the constitutionality of the State's interference with, or discrimination against, [the abortion] decision.").[2] Similarly, this Court has twice recognized, in the third-party standing context, that the attorney-client relationship is of "special consequence." See Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 623-624, n. 3 (1989); Department of Labor v. Triplett, 494 U.S. 715, 720 (1990).[3] Moreover, the Court has found an adequate "relation" between litigants alleging third-party standing and those whose rights they seek to assert when nothing more than a buyer-seller connection was at stake. See Carey, 431 U. S., at 683; Craig v. Boren, 429 U.S. 190, 195 (1976). Thus, as I see it, this case turns on the last of the three third-party standing inquiries, here, the existence of an impediment to the indigent defendants' effective assertion of their own rights through litigation. I note first that the Court has approached this requirement with a degree of elasticity. See id., at 216 (Burger, C. J., dissenting) (males between the ages of 18 and 21 who sought to purchase 3.2% beer faced no serious obstacle to asserting their own rights). The hindrance faced by a rightholder need only be "genuine," 140 not "insurmountable." Singleton, 428 U. S., at 116-117 (plurality opinion); see also Munson, 467 U. S., at 956 ("Where practical obstacles prevent a party from asserting rights on behalf of itself . . . the Court has recognized [third-party standing]."). Even assuming a requirement with more starch than the Court has insisted upon in prior decisions, this case satisfies the "impediment" test. To determine whether the indigent defendants are impeded from asserting their own rights, one must recognize the incapacities under which these defendants labor and the complexity of the issues their cases may entail. According to the Department of Justice, approximately eight out of ten state felony defendants use court-appointed lawyers. U. S. Dept. of Justice, Bureau of Justice Statistics, C. Harlow, Defense Counsel in Criminal Cases 1, 5 (Nov. 2000), available at http://www.ojp.usdoj.gov/bjs/pub/pdf/dccc.pdf (all Internet materials as visited Dec. 8, 2004, and available in Clerk of Court's case file). Approximately 70% of indigent defendants represented by appointed counsel plead guilty, and 70% of those convicted are incarcerated. Id., at 6 (Tables 10-11). It is likely that many of these indigent defendants, in common with 68% of the state prison population, did not complete high school, U. S. Dept. of Justice, Bureau of Justice Statistics, C. Harlow, Education and Correctional Populations 1 (Jan. 2003), available at http://www.ojp.usdoj.gov/bjs/pub/pdf/ecp.pdf, and many lack the most basic literacy skills, U. S. Dept. of Ed., National Center for Education Statistics, Literacy Behind Prison Walls xviii, 10, 17 (Oct. 1994) (NCES 1994-102), available at http://nces.ed.gov/pubs94/94102.pdf. A Department of Education study found that about seven out of ten inmates fall in the lowest two out of five levels of literacy marked by an inability to do such basic tasks as write a brief letter to explain an error on a credit card bill, use a bus schedule, or state in writing an argument made in a lengthy newspaper article. Id., at 10, App. A (Interpreting the Literacy Scales). An inmate so handicapped surely 141 does not possess the skill necessary to pursue a competent pro se appeal. These indigent and poorly educated defendants face appeals from guilty pleas often no less complex than other appeals. An indigent defendant who pleads guilty may still raise on appeal "constitutional defects that are irrelevant to his factual guilt, double jeopardy claims requiring no further factual record, jurisdictional defects, challenges to the sufficiency of the evidence at the preliminary examination, preserved entrapment claims, mental competency claims, factual basis claims, claims that the state had no right to proceed in the first place, including claims that a defendant was charged under an inapplicable statute, and claims of ineffective assistance of counsel." People v. Bulger, 462 Mich. 495, 561, 614 N.W.2d 103, 133-134 (2000) (Cavanagh, J., dissenting) (citations omitted). The indigent defendant pursuing his own appeal must also navigate Michigan's procedures for seeking leave to appeal after sentencing on a guilty plea. Michigan's stated Rule requires a defendant to file an application for appeal within 21 days after entry of the judgment. Mich. Rule App. Proc. 7.205(A) (2004). The defendant must submit five copies of the application "stating the date and nature of the judgment or order appealed from; concisely reciting the appellant's allegations of error and the relief sought; [and] setting forth a concise argument . . . in support of the appellant's position on each issue." Rule 7.205(B)(1). The State Court Administrative Office has furnished a three-page form application accompanied by two pages of instructions for defendants seeking leave to appeal after sentencing on a guilty plea. But this form is unlikely to provide adequate aid to an indigent and poorly educated defendant. The form requires entry of such information as "charge code(s), MCL citation/PACC Code," asks the applicant to state the issues 142 and facts relevant to the appeal, and then requires the applicant to "state the law that supports your position and explain how the law applies to the facts of your case." Application for Leave to Appeal After Sentencing on Plea of Guilty or Nolo Contendere, http://courts.michigan.gov/scao/courtforms/appeals/cc405.pdf (rev. Oct. 2003). This last task would not be onerous for an applicant familiar with law school examinations, but it is a tall order for a defendant of marginal literacy.[4] The Court, agreeing with Judge Rogers' dissent from the en banc Sixth Circuit decision, writes that recognizing third-party standing here would allow lawyers generally to assert standing to champion their potential clients' rights. Ante, at 134, n. 5. For example, a medical malpractice attorney could challenge a tort reform statute on behalf of a future client or a Social Security lawyer could challenge new regulations. Ibid.; Tesmer v. Granholm, 333 F.3d 683, 709-710 (CA6 2003) (en banc). In such cases, however, in marked contrast to the instant case, the persons directly affected malpractice plaintiffs or benefits claimantswould face no unusual obstacle in securing the aid of counsel to attack the disadvantageous statutory or regulatory change. There is no cause, therefore, to allow an attorney to challenge the benefit- or award-reducing provision in a suit brought in the attorney's name. The party whose interests the provision directly impacts can instead mount the challenge with the aid of counsel. This case is "unusual because it is the deprivation of counsel itself that prevents indigent defendants from protecting 143 their right to counsel." Brief for National Association of Criminal Defense Lawyers et al. as Amici Curiae 17. The challenged statute leaves indigent criminal defendants without the aid needed to gain access to the appellate forum and thus without a viable means to protect their rights. Cf. Evitts v. Lucey, 469 U.S. 387, 393 (1985) ("[T]he services of a lawyer will for virtually every layman be necessary to present an appeal in a form suitable for appellate consideration on the merits."). The Court is "unpersuaded by the attorneys' `hindrance' argument," ante, at 132, in the main, because it sees a clear path for Fitzgerald and Vogler: They could have "attend[ed] state court and assist[ed] [indigent defendants,]" ibid. Had the attorneys taken this course, hundreds, perhaps thousands, of criminal defendants would have gone uncounseled while the attorneys afforded assistance to a few individuals. In order to protect the rights of all indigent defendants, the attorneys sought prospective classwide relief to prevent the statute from taking effect. See Tr. of Oral Arg. 41 ("The problem was we had to file this litigation before the statute went into effect because once the statute went into effect, thousands of Michigan indigents would be denied the right to counsel every year and would suffer probably irreparable damage to their right to appeal."). This case implicates none of the concerns underlying the Court's prudential criteria. The general prohibition against third-party standing "`frees the Court not only from unnecessary pronouncement on constitutional issues, but also from premature interpretations of statutes in areas where their constitutional application might be cloudy,' and it assures the court that the issues before it will be concrete and sharply presented." Munson, 467 U. S., at 955 (citation omitted) (quoting United States v. Raines, 362 U.S. 17, 22 (1960)). Attorneys Fitzgerald and Vogler have "properly ... frame[d] the issues and present[ed] them with the necessary adversarial 144 zeal," 467 U.S., at 956, and whether the indigent defendants whose rights they assert are entitled to counsel is a question fully ripe for resolution.[5] The Court concludes that the principle of Younger v. Harris, 401 U.S. 37 (1971), "is an additional reason to deny the attorneys third-party standing." Ante, at 133. Whether a federal court should abstain under Younger is, of course, distinct from whether a party has standing to sue. See 401 U.S., at 41-42 (dismissing three appellees on standing grounds before addressing the abstention question). Younger "[has] little force in the absence of a pending state proceeding." Steffel v. Thompson, 415 U.S. 452, 462 (1974) (quoting Lake Carriers' Assn. v. MacMullan, 406 U.S. 498, 509 (1972)). "When no state criminal proceeding is pending at the time the federal complaint is filed, federal intervention does not result in duplicative legal proceedings or disruption of the state criminal justice system; nor can federal intervention, in that circumstance, be interpreted as reflecting negatively upon the state court's ability to enforce constitutional principles." 415 U.S., at 462; accord Doran v. Salem Inn, Inc., 422 U.S. 922, 930 (1975). Attorneys Fitzgerald and Vogler filed this suit before the Michigan statute took effect. At that time, no state criminal proceeding governed by the statute existed with which this suit could interfere.[6] In sum, this case presents an unusual if not unique case of defendants facing near-insurmountable practical obstacles to protecting their rights in the state forum: First, it is the deprivation of counsel itself that prevents indigent defendants, 145 many of whom are likely to be unsophisticated and poorly educated, from protecting their rights; second, the substantive issues that such defendants could raise in an appeal are myriad and often complicated; and third, the procedural requirements for an appeal after a guilty plea are not altogether indigent-user friendly. The exposure of impecunious defendants to these access-to-appeal blockages in state court makes the need for this suit all the more compelling. * * For the reasons stated, I would affirm the en banc Sixth Circuit decision that attorneys Fitzgerald and Vogler have standing to maintain the instant action and would proceed to the merits of the controversy.	Plaintiffs-respondents Arthur M. Fitzgerald and Michael D. Vogler are Michigan attorneys who have routinely received appointments to represent defendants in state-court criminal appeals, including appeals from plea-based convictions. They assert third-party standing to challenge a state law limiting an indigent's right to counsel: As codified in3a(1) the challenged law prescribes that most indigents "who plea[d] guilty, guilty but mentally ill, or nolo contendere shall not have appellate counsel appointed for review of the defendant's conviction or sentence." The attorneys before us emphasize that indigent defendants generally are unable to navigate the appellate process pro se. In view of that reality, the attorneys brought this action under 42 U.S. C. 1983, to advance indigent defendants' constitutional right to counsel's aid in pursuing appeals from plea-based convictions. "Ordinarily," attorneys Fitzgerald and Vogler acknowledge, "one may not claim standing to vindicate the constitutional rights of [a] third party." The Court has recognized exceptions to the general rule, however, when certain circumstances combine: (1) "The litigant [has] suffered an `injury in fact,' giving him or her a `sufficiently concrete interest' in the outcome of the issue in dispute"; (2) "the litigant [has] a close relation to the third party"; and (3) "there [exists] some hindrance to the third party's ability to protect his or her own interests." The first requirement is of a different order than the second and third, for whether a litigant meets the constitutional prescription of injury in fact determines whether his suit is "a case or controversy subject to a federal court's Art. III jurisdiction." By contrast, the close relation and hindrance criteria are "prudential considerations," Secretary of State of "judge made rule[s] fashion[ed] for our own governance," Our precedent leaves scant room for doubt that attorneys Fitzgerald and Vogler have shown both injury in fact, and the requisite close relation to indigent defendants who seek the assistance of counsel to appeal from plea-based convictions. I conclude, as well, that those attorneys have demonstrated a formidable hindrance to the indigents' ability to proceed without the aid of counsel. As to injury in fact, attorneys Fitzgerald and Vogler alleged in their complaint that3a would cause them direct economic loss because it will "reduc[e] the number of cases in which they could be appointed and paid as assigned appellate counsel." App. 16a. This allegation is hardly debatable. The Michigan system for assigning appellate attorneys to indigent defendants operates on a strict rotation. With fewer cases to be assigned under the new statute, the pace of the rotation would slow, and Fitzgerald and Vogler, who are on the rosters for assignment, would earn less for representation of indigent appellants than they earned in years prior to the cutback on state-funded appeals.[1] 138 In two physicians challenged state restrictions imposed on funding for abortions. Eight Members of this Court determined that the physicians had adequately alleged concrete injury: "If the physicians prevail[ed] in their suit they [would] then receive payment [and t]he State (and Federal Government) [would] be out of pocket by the amount of the payments." ; see Inescapably, the same reasoning applies to attorneys Fitzgerald and Vogler. They have alleged their past, state-paid representation of indigent defendants in appeals from plea-based convictions, and their aim to continue such representation in the future. As in they will suffer injury "concrete and particularized[,] actual or imminent, not conjectural or hypothetical," Friends of Earth, if Michigan's statute holds sway. See generally R. Fallon, D. Meltzer, & D. Shapiro, Hart and Wechsler's The Federal Courts and the Federal System 177-178, and n. 5 Nor, under our precedent, should attorneys Fitzgerald and Vogler encounter a "close relation" shoal. Our prior decisions do not warrant the distinction between an "existing" relationship and a "hypothetical" relationship that the Court advances today. Ante, at 131. See, e. g., ; "the owners of private schools were entitled to assert the rights of potential pupils and their parents," and in Barrows, "a white defendant was allowed to raise the rights of prospective Negro purchasers" (emphases added)). 139 Without suggesting that the timing of a relationship is key, the Court's decisions have focused on the character of the relationship between the litigant and the rightholder. See (propriety of third-party standing depends on "the nature of the relationship"). for example, acknowledged the significant bond between physician and patient. See ("[T]he physician is uniquely qualified to litigate the constitutionality of the State's interference with, or discrimination against, [the abortion] decision.").[2] Similarly, this Court has twice recognized, in the third-party standing context, that the attorney-client relationship is of "special consequence." See Caplin & Drysdale, ; Department of[3] Moreover, the Court has found an adequate "relation" between litigants alleging third-party standing and those whose rights they seek to assert when nothing more than a buyer-seller connection was at stake. See 431 U. S., at ; Thus, as I see it, this case turns on the last of the three third-party standing inquiries, here, the existence of an impediment to the indigent defendants' effective assertion of their own rights through litigation. I note first that the Court has approached this requirement with a degree of elasticity. See (males between the ages of 18 and 21 who sought to purchase 3.2% beer faced no serious obstacle to asserting their own rights). The hindrance faced by a rightholder need only be "genuine," 140 not "insurmountable." -117 ; see also Even assuming a requirement with more starch than the Court has insisted upon in prior decisions, this case satisfies the "impediment" test. To determine whether the indigent defendants are impeded from asserting their own rights, one must recognize the incapacities under which these defendants labor and the complexity of the issues their cases may entail. According to the Department of Justice, approximately eight out of ten state felony defendants use court-appointed lawyers. U. S. Dept. of Justice, Bureau of Justice Statistics, C. Harlow, Defense Counsel in Criminal Cases 1, 5 available at http://www.ojp.usdoj.gov/bjs/pub/pdf/dccc.pdf (all Internet materials as visited Dec. 8, 2004, and available in Clerk of Court's case file). Approximately 70% of indigent defendants represented by appointed counsel plead guilty, and 70% of those convicted are incarcerated. It is likely that many of these indigent defendants, in common with 68% of the state prison population, did not complete high school, U. S. Dept. of Justice, Bureau of Justice Statistics, C. Harlow, Education and Correctional Populations 1 available at http://www.ojp.usdoj.gov/bjs/pub/pdf/ecp.pdf, and many lack the most basic literacy skills, U. S. Dept. of Ed., National Center for Education Statistics, Literacy Behind Prison Walls xviii, 10, 17 (Oct. 1994) (NCES 1994-102), available at http://nces.ed.gov/pubs94/94102.pdf. A Department of Education study found that about seven out of ten inmates fall in the lowest two out of five levels of literacy marked by an inability to do such basic tasks as write a brief letter to explain an error on a credit card bill, use a bus schedule, or state in writing an argument made in a lengthy newspaper article. App. A (Interpreting the Literacy Scales). An inmate so handicapped surely 141 does not possess the skill necessary to pursue a competent pro se appeal. These indigent and poorly educated defendants face appeals from guilty pleas often no less complex than other appeals. An indigent defendant who pleads guilty may still raise on appeal "constitutional defects that are irrelevant to his factual guilt, double jeopardy claims requiring no further factual record, jurisdictional defects, challenges to the sufficiency of the evidence at the preliminary examination, preserved entrapment claims, mental competency claims, factual basis claims, claims that the state had no right to proceed in the first place, including claims that a defendant was charged under an inapplicable statute, and claims of ineffective assistance of counsel." (citations omitted). The indigent defendant pursuing his own appeal must also navigate Michigan's procedures for seeking leave to appeal after sentencing on a guilty plea. Michigan's stated Rule requires a defendant to file an application for appeal within 21 days after entry of the judgment. Mich. Rule App. Proc. 7.205(A) (2004). The defendant must submit five copies of the application "stating the date and nature of the judgment or order appealed from; concisely reciting the appellant's allegations of error and the relief sought; [and] setting forth a concise argument in support of the appellant's position on each issue." Rule 7.205(B)(1). The State Court Administrative Office has furnished a three-page form application accompanied by two pages of instructions for defendants seeking leave to appeal after sentencing on a guilty plea. But this form is unlikely to provide adequate aid to an indigent and poorly educated defendant. The form requires entry of such information as "charge code(s), MCL citation/PACC Code," asks the applicant to state the issues 142 and facts relevant to the appeal, and then requires the applicant to "state the law that supports your position and explain how the law applies to the facts of your case." Application for Leave to Appeal After Sentencing on Plea of Guilty or Nolo Contendere, http://courts.michigan.gov/scao/courtforms/appeals/cc405.pdf This last task would not be onerous for an applicant familiar with law school examinations, but it is a tall order for a defendant of marginal literacy.[4] The Court, agreeing with Judge Rogers' dissent from the en banc Sixth Circuit decision, writes that recognizing third-party standing here would allow lawyers generally to assert standing to champion their potential clients' rights. Ante, at 134, n. 5. For example, a medical malpractice attorney could challenge a tort reform statute on behalf of a future client or a Social Security lawyer could challenge new regulations. ; 333 F.3d In such cases, however, in marked contrast to the instant case, the persons directly affected malpractice plaintiffs or benefits claimantswould face no unusual obstacle in securing the aid of counsel to attack the disadvantageous statutory or regulatory change. There is no cause, therefore, to allow an attorney to challenge the benefit- or award-reducing provision in a suit brought in the attorney's name. The party whose interests the provision directly impacts can instead mount the challenge with the aid of counsel. This case is "unusual because it is the deprivation of counsel itself that prevents indigent defendants from protecting 143 their right to counsel." Brief for National Association of Criminal Defense Lawyers et al. as Amici Curiae 17. The challenged statute leaves indigent criminal defendants without the aid needed to gain access to the appellate forum and thus without a viable means to protect their rights. Cf. The Court is "unpersuaded by the attorneys' `hindrance' argument," ante, at 132, in the main, because it sees a clear path for Fitzgerald and Vogler: They could have "attend[ed] state court and assist[ed] [indigent defendants,]" Had the attorneys taken this course, hundreds, perhaps thousands, of criminal defendants would have gone uncounseled while the attorneys afforded assistance to a few individuals. In order to protect the rights of all indigent defendants, the attorneys sought prospective classwide relief to prevent the statute from taking effect. See Tr. of Oral Arg. 41 ("The problem was we had to file this litigation before the statute went into effect because once the statute went into effect, thousands of Michigan indigents would be denied the right to counsel every year and would suffer probably irreparable damage to their right to appeal."). This case implicates none of the concerns underlying the Court's prudential criteria. The general prohibition against third-party standing "`frees the Court not only from unnecessary pronouncement on constitutional issues, but also from premature interpretations of statutes in areas where their constitutional application might be cloudy,' and it assures the court that the issues before it will be concrete and sharply presented." 467 U. S., at ). Attorneys Fitzgerald and Vogler have "properly frame[d] the issues and present[ed] them with the necessary adversarial 144 zeal," and whether the indigent defendants whose rights they assert are entitled to counsel is a question fully ripe for resolution.[5] The Court concludes that the principle of "is an additional reason to deny the attorneys third-party standing." Ante, at 133. Whether a federal court should abstain under Younger is, of course, distinct from whether a party has standing to sue. See -42 Younger "[has] little force in the absence of a pending state proceeding." "When no state criminal proceeding is pending at the time the federal complaint is filed, federal intervention does not result in duplicative legal proceedings or disruption of the state criminal justice system; nor can federal intervention, in that circumstance, be interpreted as reflecting negatively upon the state court's ability to enforce constitutional principles." ; accord 4 U.S. 9, Attorneys Fitzgerald and Vogler filed this suit before the Michigan statute took effect. At that time, no state criminal proceeding governed by the statute existed with which this suit could interfere.[6] In sum, this case presents an unusual if not unique case of defendants facing near-insurmountable practical obstacles to protecting their rights in the state forum: First, it is the deprivation of counsel itself that prevents indigent defendants, 145 many of whom are likely to be unsophisticated and poorly educated, from protecting their rights; second, the substantive issues that such defendants could raise in an appeal are myriad and often complicated; and third, the procedural requirements for an appeal after a guilty plea are not altogether indigent-user friendly. The exposure of impecunious defendants to these access-to-appeal blockages in state court makes the need for this suit all the more compelling. * * * For the reasons stated, I would affirm the en banc Sixth Circuit decision that attorneys Fitzgerald and Vogler have standing to maintain the instant action and would proceed to the merits of the controversy.	1,900
Justice Breyer	majority	false	Zadvydas v. Davis	2001-06-28	null	https://www.courtlistener.com/opinion/1269289/zadvydas-v-davis/	https://www.courtlistener.com/api/rest/v3/clusters/1269289/	2,001	2000-087	2	5	4	When an alien has been found to be unlawfully present in the United States and a final order of removal has been entered, the Government ordinarily secures the alien's removal during a subsequent 90-day statutory "removal period," during which time the alien normally is held in custody. A special statute authorizes further detention if the Government fails to remove the alien during those 90 days. It says: "An alien ordered removed [1] who is inadmissible . . . [2] [or] removable [as a result of violations of status requirements or entry conditions, violations of criminal law, or reasons of security or foreign policy] or [3] who has been determined by the Attorney General to be a risk to the community or unlikely to comply with the order of removal, may be detained beyond the removal period and, if released, shall be subject to [certain] terms of supervision . . . ." 8 U. S. C. § 1231(a)(6) (1994 ed., Supp. V). In these cases, we must decide whether this postremoval-period statute authorizes the Attorney General to detain a removable alien indefinitely beyond the removal period or only for a period reasonably necessary to secure the alien's removal. We deal here with aliens who were admitted to the United States but subsequently ordered removed. Aliens who have not yet gained initial admission to this country would present a very different question. See infra, at 693-694. Based on our conclusion that indefinite detention of aliens in the former category would raise serious constitutional concerns, we construe the statute to contain an implicit "reasonable time" limitation, the application of which is subject to federal-court review. 683 I A The post-removal-period detention statute is one of a related set of statutes and regulations that govern detention during and after removal proceedings. While removal proceedings are in progress, most aliens may be released on bond or paroled. 66 Stat. 204, as added and amended, 110 Stat. 3009-585, 8 U. S. C. §§ 1226(a)(2), (c) (1994 ed., Supp. V). After entry of a final removal order and during the 90-day removal period, however, aliens must be held in custody. § 1231(a)(2). Subsequently, as the post-removal-period statute provides, the Government "may" continue to detain an alien who still remains here or release that alien under supervision. § 1231(a)(6). Related Immigration and Naturalization Service (INS) regulations add that the INS District Director will initially review the alien's records to decide whether further detention or release under supervision is warranted after the 90-day removal period expires. 8 CFR §§ 241.4(c)(1), (h), (k)(1)(i) (2001). If the decision is to detain, then an INS panel will review the matter further, at the expiration of a 3-month period or soon thereafter. § 241.4(k)(2)(ii). And the panel will decide, on the basis of records and a possible personal interview, between still further detention or release under supervision. § 241.4(i). In making this decision, the panel will consider, for example, the alien's disciplinary record, criminal record, mental health reports, evidence of rehabilitation, history of flight, prior immigration history, and favorable factors such as family ties. § 241.4(f). To authorize release, the panel must find that the alien is not likely to be violent, to pose a threat to the community, to flee if released, or to violate the conditions of release. § 241.4(e). And the alien must demonstrate "to the satisfaction of the Attorney General" that he will pose no danger or risk of flight. 684 § 241.4(d)(1). If the panel decides against release, it must review the matter again within a year, and can review it earlier if conditions change. §§ 241.4(k)(2)(iii), (v). B 1 We consider two separate instances of detention. The first concerns Kestutis Zadvydas, a resident alien who was born, apparently of Lithuanian parents, in a displaced persons camp in Germany in 1948. When he was eight years old, Zadvydas immigrated to the United States with his parents and other family members, and he has lived here ever since. Zadvydas has a long criminal record, involving drug crimes, attempted robbery, attempted burglary, and theft. He has a history of flight, from both criminal and deportation proceedings. Most recently, he was convicted of possessing, with intent to distribute, cocaine; sentenced to 16 years' imprisonment; released on parole after two years; taken into INS custody; and, in 1994, ordered deported to Germany. See 8 U. S. C. § 1251(a)(2) (1988 ed., Supp. V) (delineating crimes that make alien deportable). In 1994, Germany told the INS that it would not accept Zadvydas because he was not a German citizen. Shortly thereafter, Lithuania refused to accept Zadvydas because he was neither a Lithuanian citizen nor a permanent resident. In 1996, the INS asked the Dominican Republic (Zadvydas' wife's country) to accept him, but this effort proved unsuccessful. In 1998, Lithuania rejected, as inadequately documented, Zadvydas' effort to obtain Lithuanian citizenship based on his parents' citizenship; Zadvydas' reapplication is apparently still pending. The INS kept Zadvydas in custody after expiration of the removal period. In September 1995, Zadvydas filed a petition for a writ of habeas corpus under 28 U. S. C. § 2241 challenging 685 his continued detention. In October 1997, a Federal District Court granted that writ and ordered him released under supervision. Zadvydas v. Caplinger, 986 F. Supp. 1011, 1027-1028 (ED La.). In its view, the Government would never succeed in its efforts to remove Zadvydas from the United States, leading to his permanent confinement, contrary to the Constitution. Id., at 1027. The Fifth Circuit reversed this decision. Zadvydas v. Underdown, 185 F. 3d 279 (1999). It concluded that Zadvydas' detention did not violate the Constitution because eventual deportation was not "impossible," good-faith efforts to remove him from the United States continued, and his detention was subject to periodic administrative review. Id., at 294, 297. The Fifth Circuit stayed its mandate pending potential review in this Court. 2 The second case is that of Kim Ho Ma. Ma was born in Cambodia in 1977. When he was two, his family fled, taking him to refugee camps in Thailand and the Philippines and eventually to the United States, where he has lived as a resident alien since the age of seven. In 1995, at age 17, Ma was involved in a gang-related shooting, convicted of manslaughter, and sentenced to 38 months' imprisonment. He served two years, after which he was released into INS custody. In light of his conviction of an "aggravated felony," Ma was ordered removed. See 8 U. S. C. §§ 1101(a)(43)(F) (defining certain violent crimes as aggravated felonies), 1227(a)(2)(A)(iii) (1994 ed., Supp. IV) (aliens convicted of aggravated felonies are deportable). The 90-day removal period expired in early 1999, but the INS continued to keep Ma in custody, because, in light of his former gang membership, the nature of his crime, and his planned participation in a prison hunger strike, it was "unable to conclude that 686 Mr. Ma would remain nonviolent and not violate the conditions of release." App. to Pet. for Cert. in No. 00-38, p. 87a. In 1999, Ma filed a petition for a writ of habeas corpus under 28 U. S. C. § 2241. A panel of five judges in the Federal District Court for the Western District of Washington, considering Ma's and about 100 similar cases together, issued a joint order holding that the Constitution forbids postremoval-period detention unless there is "a realistic chance that [the] alien will be deported" (thereby permitting classification of the detention as "in aid of deportation"). Binh Phan v. Reno, 56 F. Supp. 2d 1149, 1156 (1999). The District Court then held an evidentiary hearing, decided that there was no "realistic chance" that Cambodia (which has no repatriation treaty with the United States) would accept Ma, and ordered Ma released. App. to Pet. for Cert. in No. 00-38, at 60a61a. The Ninth Circuit affirmed Ma's release. Kim Ho Ma v. Reno, 208 F. 3d 815 (2000). It concluded, based in part on constitutional concerns, that the statute did not authorize detention for more than a "reasonable time" beyond the 90-day period authorized for removal. Id., at 818. And, given the lack of a repatriation agreement with Cambodia, that time had expired upon passage of the 90 days. Id., at 830-831. 3 Zadvydas asked us to review the decision of the Fifth Circuit authorizing his continued detention. The Government asked us to review the decision of the Ninth Circuit forbidding Ma's continued detention. We granted writs in both cases, agreeing to consider both statutory and related constitutional questions. See also Duy Dac Ho v. Greene, 204 F. 3d 1045, 1060 (CA10 2000) (upholding Attorney General's statutory and constitutional authority to detain alien indefinitely). We consolidated the two cases for argument; and we now decide them together. 687 II We note at the outset that the primary federal habeas corpus statute, 28 U. S. C. § 2241, confers jurisdiction upon the federal courts to hear these cases. See § 2241(c)(3) (authorizing any person to claim in federal court that he or she is being held "in custody in violation of the Constitution or laws . . . of the United States"). Before 1952, the federal courts considered challenges to the lawfulness of immigration-related detention, including challenges to the validity of a deportation order, in habeas proceedings. See Heikkila v. Barber, 345 U. S. 229, 230, 235-236 (1953). Beginning in 1952, an alternative method for review of deportation orders, namely, actions brought in federal district court under the Administrative Procedure Act (APA), became available. See Shaughnessy v. Pedreiro, 349 U. S. 48, 51-52 (1955). And in 1961 Congress replaced district court APA review with initial deportation order review in courts of appeals. See Act of Sept. 26, 1961, § 5, 75 Stat. 651 (formerly codified at 8 U. S. C. § 1105a(a)) (repealed 1996). The 1961 Act specified that federal habeas courts were also available to hear statutory and constitutional challenges to deportation (and exclusion) orders. See 8 U. S. C. §§ 1105a(a)(10), (b) (repealed 1996). These statutory changes left habeas untouched as the basic method for obtaining review of continued custody after a deportation order had become final. See Cheng Fan Kwok v. INS, 392 U. S. 206, 212, 215-216 (1968) (holding that § 1105a(a) applied only to challenges to determinations made during deportation proceedings and motions to reopen those proceedings). More recently, Congress has enacted several statutory provisions that limit the circumstances in which judicial review of deportation decisions is available. But none applies here. One provision, 8 U. S. C. § 1231(h) (1994 ed., Supp. V), simply forbids courts to construe that section "to create any . . . procedural right or benefit that is legally enforceable"; 688 it does not deprive an alien of the right to rely on 28 U. S. C. § 2241 to challenge detention that is without statutory authority. Another provision, 8 U. S. C. § 1252(a)(2)(B)(ii) (1994 ed., Supp. V), says that "no court shall have jurisdiction to review" decisions "specified . . . to be in the discretion of the Attorney General." The aliens here, however, do not seek review of the Attorney General's exercise of discretion; rather, they challenge the extent of the Attorney General's authority under the post-removal-period detention statute. And the extent of that authority is not a matter of discretion. See also, e. g., § 1226(e) (applicable to certain detentionrelated decisions in period preceding entry of final removal order); § 1231(a)(4)(D) (applicable to assertion of causes or claims under § 1231(a)(4), which is not at issue here); §§ 1252(a)(1), (a)(2)(C) (applicable to judicial review of "final order[s] of removal"); § 1252(g) (applicable to decisions "to commence proceedings, adjudicate cases, or execute removal orders"). We conclude that § 2241 habeas corpus proceedings remain available as a forum for statutory and constitutional challenges to post-removal-period detention. And we turn to the merits of the aliens' claims. III The post-removal-period detention statute applies to certain categories of aliens who have been ordered removed, namely, inadmissible aliens, criminal aliens, aliens who have violated their nonimmigrant status conditions, and aliens removable for certain national security or foreign relations reasons, as well as any alien "who has been determined by the Attorney General to be a risk to the community or unlikely to comply with the order of removal." 8 U. S. C. § 1231(a)(6) (1994 ed., Supp. V); see also 8 CFR § 241.4(a) (2001). It says that an alien who falls into one of these categories 689 "may be detained beyond the removal period and, if released, shall be subject to [certain] terms of supervision." 8 U. S. C. § 1231(a)(6) (1994 ed., Supp. V). The Government argues that the statute means what it literally says. It sets no "limit on the length of time beyond the removal period that an alien who falls within one of the Section 1231(a)(6) categories may be detained." Brief for Petitioners in No. 00-38, p. 22. Hence, "whether to continue to detain such an alien and, if so, in what circumstances and for how long" is up to the Attorney General, not up to the courts. Ibid. "[I]t is a cardinal principle" of statutory interpretation, however, that when an Act of Congress raises "a serious doubt" as to its constitutionality, "this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided." Crowell v. Benson, 285 U. S. 22, 62 (1932); see also United States v. X-Citement Video, Inc., 513 U. S. 64, 78 (1994); United States v. Jin Fuey Moy, 241 U. S. 394, 401 (1916); cf. Almendarez-Torres v. United States, 523 U. S. 224, 238 (1998) (construction of statute that avoids invalidation best reflects congressional will). We have read significant limitations into other immigration statutes in order to avoid their constitutional invalidation. See United States v. Witkovich, 353 U. S. 194, 195, 202 (1957) (construing a grant of authority to the Attorney General to ask aliens whatever questions he "deem[s] fit and proper" as limited to questions "reasonably calculated to keep the Attorney General advised regarding the continued availability for departure of aliens whose deportation is overdue"). For similar reasons, we read an implicit limitation into the statute before us. In our view, the statute, read in light of the Constitution's demands, limits an alien's post-removalperiod detention to a period reasonably necessary to bring about that alien's removal from the United States. It does not permit indefinite detention. 690 A A statute permitting indefinite detention of an alien would raise a serious constitutional problem. The Fifth Amendment's Due Process Clause forbids the Government to "depriv[e]" any "person . . . of . . . liberty . . . without due process of law." Freedom from imprisonmentfrom government custody, detention, or other forms of physical restraintlies at the heart of the liberty that Clause protects. See Foucha v. Louisiana, 504 U. S. 71, 80 (1992). And this Court has said that government detention violates that Clause unless the detention is ordered in a criminal proceeding with adequate procedural protections, see United States v. Salerno, 481 U. S. 739, 746 (1987), or, in certain special and "narrow" nonpunitive "circumstances," Foucha, supra, at 80, where a special justification, such as harm-threatening mental illness, outweighs the "individual's constitutionally protected interest in avoiding physical restraint." Kansas v. Hendricks, 521 U. S. 346, 356 (1997). The proceedings at issue here are civil, not criminal, and we assume that they are nonpunitive in purpose and effect. There is no sufficiently strong special justification here for indefinite civil detentionat least as administered under this statute. The statute, says the Government, has two regulatory goals: "ensuring the appearance of aliens at future immigration proceedings" and "[p]reventing danger to the community." Brief for Respondents in No. 99-7791, p. 24. But by definition the first justificationpreventing flightis weak or nonexistent where removal seems a remote possibility at best. As this Court said in Jackson v. Indiana, 406 U. S. 715 (1972), where detention's goal is no longer practically attainable, detention no longer "bear[s] [a] reasonable relation to the purpose for which the individual [was] committed." Id., at 738. The second justificationprotecting the communitydoes not necessarily diminish in force over time. But we have 691 upheld preventive detention based on dangerousness only when limited to specially dangerous individuals and subject to strong procedural protections. Compare Hendricks, supra, at 368 (upholding scheme that imposes detention upon "a small segment of particularly dangerous individuals" and provides "strict procedural safeguards"), and Salerno, supra, at 747, 750-752 (in upholding pretrial detention, stressing "stringent time limitations," the fact that detention is reserved for the "most serious of crimes," the requirement of proof of dangerousness by clear and convincing evidence, and the presence of judicial safeguards), with Foucha, supra, at 81-83 (striking down insanity-related detention system that placed burden on detainee to prove nondangerousness). In cases in which preventive detention is of potentially indefinite duration, we have also demanded that the dangerousness rationale be accompanied by some other special circumstance, such as mental illness, that helps to create the danger. See Hendricks, supra, at 358, 368. The civil confinement here at issue is not limited, but potentially permanent. Cf. Salerno, supra, at 747 (noting that "maximum length of pretrial detention is limited" by "stringent" requirements); Carlson v. Landon, 342 U. S. 524, 545 546 (1952) (upholding temporary detention of alien during deportation proceeding while noting that "problem of . . . unusual delay" was not present). The provision authorizing detention does not apply narrowly to "a small segment of particularly dangerous individuals," Hendricks, supra, at 368, say, suspected terrorists, but broadly to aliens ordered removed for many and various reasons, including tourist visa violations. See 8 U. S. C. § 1231(a)(6) (1994 ed., Supp. V) (referencing § 1227(a)(1)(C)); cf. Hendricks, 521 U. S., at 357 358 (only individuals with "past sexually violent behavior and a present mental condition that creates a likelihood of such conduct in the future" may be detained). And, once the flight risk justification evaporates, the only special circumstance 692 present is the alien's removable status itself, which bears no relation to a detainee's dangerousness. Cf. id., at 358; Foucha, supra, at 82. Moreover, the sole procedural protections available to the alien are found in administrative proceedings, where the alien bears the burden of proving he is not dangerous, without (in the Government's view) significant later judicial review. Compare 8 CFR § 241.4(d)(1) (2001) (imposing burden of proving nondangerousness upon alien) with Foucha, supra, at 82 (striking down insanity-related detention for that very reason). This Court has suggested, however, that the Constitution may well preclude granting "an administrative body the unreviewable authority to make determinations implicating fundamental rights." Superintendent, Mass. Correctional Institution at Walpole v. Hill, 472 U. S. 445, 450 (1985) (O'Connor, J.); see also Crowell, 285 U. S., at 87 (Brandeis, J., dissenting) ("[U]nder certain circumstances, the constitutional requirement of due process is a requirement of judicial process"). The Constitution demands greater procedural protection even for property. See South Carolina v. Regan, 465 U. S. 367, 393 (1984) (O'Connor, J., concurring in judgment); Phillips v. Commissioner, 283 U. S. 589, 595-597 (1931) (Brandeis, J.). The serious constitutional problem arising out of a statute that, in these circumstances, permits an indefinite, perhaps permanent, deprivation of human liberty without any such protection is obvious. The Government argues that, from a constitutional perspective, alien status itself can justify indefinite detention, and points to Shaughnessy v. United States ex rel. Mezei, 345 U. S. 206 (1953), as support. That case involved a once lawfully admitted alien who left the United States, returned after a trip abroad, was refused admission, and was left on Ellis Island, indefinitely detained there because the Government could not find another country to accept him. The Court held that Mezei's detention did not violate the Constitution. Id., at 215-216. 693 Although Mezei, like the present cases, involves indefinite detention, it differs from the present cases in a critical respect. As the Court emphasized, the alien's extended departure from the United States required him to seek entry into this country once again. His presence on Ellis Island did not count as entry into the United States. Hence, he was "treated," for constitutional purposes, "as if stopped at the border." Id., at 213, 215. And that made all the difference. The distinction between an alien who has effected an entry into the United States and one who has never entered runs throughout immigration law. See Kaplan v. Tod, 267 U. S. 228, 230 (1925) (despite nine years' presence in the United States, an "excluded" alien "was still in theory of law at the boundary line and had gained no foothold in the United States"); Leng May Ma v. Barber, 357 U. S. 185, 188-190 (1958) (alien "paroled" into the United States pending admissibility had not effected an "entry"). It is well established that certain constitutional protections available to persons inside the United States are unavailable to aliens outside of our geographic borders. See United States v. VerdugoUrquidez, 494 U. S. 259, 269 (1990) (Fifth Amendment's protections do not extend to aliens outside the territorial boundaries); Johnson v. Eisentrager, 339 U. S. 763, 784 (1950) (same). But once an alien enters the country, the legal circumstance changes, for the Due Process Clause applies to all "persons" within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent. See Plyler v. Doe, 457 U. S. 202, 210 (1982); Mathews v. Diaz, 426 U. S. 67, 77 (1976); Kwong Hai Chew v. Colding, 344 U. S. 590, 596-598, and n. 5 (1953); Yick Wo v. Hopkins, 118 U. S. 356, 369 (1886); cf. Mezei, supra, at 212 ("[A]liens who have once passed through our gates, even illegally, may be expelled only after proceedings conforming to traditional standards of fairness encompassed in due process of law"). Indeed, this Court has held that the Due Process 694 Clause protects an alien subject to a final order of deportation, see Wong Wing v. United States, 163 U. S. 228, 238 (1896), though the nature of that protection may vary depending upon status and circumstance, see Landon v. Plasencia, 459 U. S. 21, 32-34 (1982); Johnson, supra, at 770. In Wong Wing, supra, the Court held unconstitutional a statute that imposed a year of hard labor upon aliens subject to a final deportation order. That case concerned substantive protections for aliens who had been ordered removed, not procedural protections for aliens whose removability was being determined. Cf. post, at 704 (Scalia, J., dissenting). The Court held that punitive measures could not be imposed upon aliens ordered removed because "all persons within the territory of the United States are entitled to the protection" of the Constitution. 163 U. S., at 238 (citing Yick Wo, supra, at 369 (holding that equal protection guarantee applies to Chinese aliens)); see also Witkovich, 353 U. S., at 199, 201 (construing statute which applied to aliens ordered deported in order to avoid substantive constitutional problems). And contrary to Justice Scalia's characterization, see post, at 703-705, in Mezei itself, both this Court's rejection of Mezei's challenge to the procedures by which he was deemed excludable and its rejection of his challenge to continued detention rested upon a basic territorial distinction. See Mezei, supra, at 215 (holding that Mezei's presence on Ellis Island was not "considered a landing" and did "not affec[t]" his legal or constitutional status (internal quotation marks omitted)). In light of this critical distinction between Mezei and the present cases, Mezei does not offer the Government significant support, and we need not consider the aliens' claim that subsequent developments have undermined Mezei `s legal authority. See Brief for Petitioner in No. 99-7791, p. 23; Brief for Respondent in No. 00-38, pp. 16-17; Brief for Lawyers' Committee for Human Rights as Amicus Curiae in No. 00-38, pp. 15-20. Nor are we aware of any other authority that would support Justice Kennedy's limitation of 695 due process protection for removable aliens to freedom from detention that is arbitrary or capricious. See post, at 717 722 (dissenting opinion). The Government also looks for support to cases holding that Congress has "plenary power" to create immigration law, and that the Judicial Branch must defer to Executive and Legislative Branch decisionmaking in that area. Brief for Respondents in No. 99-7791, at 17, 20 (citing Harisiades v. Shaughnessy, 342 U. S. 580, 588-589 (1952)). But that power is subject to important constitutional limitations. See INS v. Chadha, 462 U. S. 919, 941-942 (1983) (Congress must choose "a constitutionally permissible means of implementing" that power); The Chinese Exclusion Case, 130 U. S. 581, 604 (1889) (congressional authority limited "by the Constitution itself and considerations of public policy and justice which control, more or less, the conduct of all civilized nations"). In these cases, we focus upon those limitations. In doing so, we nowhere deny the right of Congress to remove aliens, to subject them to supervision with conditions when released from detention, or to incarcerate them where appropriate for violations of those conditions. See 8 U. S. C. § 1231(a)(3) (1994 ed., Supp. V) (granting authority to Attorney General to prescribe regulations governing supervision of aliens not removed within 90 days); § 1253 (imposing penalties for failure to comply with release conditions). The question before us is not one of "`confer[ring] on those admitted the right to remain against the national will' " or "`sufferance of aliens' " who should be removed. Post, at 703 (Scalia, J., dissenting) (emphasis deleted) (quoting Mezei, 345 U. S., at 222-223 (Jackson, J., dissenting)). Rather, the issue we address is whether aliens that the Government finds itself unable to remove are to be condemned to an indefinite term of imprisonment within the United States. Nor do the cases before us require us to consider the political branches' authority to control entry into the United States. Hence we leave no "unprotected spot in the Nation's 696 armor." Kwong Hai Chew, 344 U. S., at 602. Neither do we consider terrorism or other special circumstances where special arguments might be made for forms of preventive detention and for heightened deference to the judgments of the political branches with respect to matters of national security. The sole foreign policy consideration the Government mentions here is the concern lest courts interfere with "sensitive" repatriation negotiations. Brief for Respondents in No. 99-7791, at 21. But neither the Government nor the dissents explain how a habeas court's efforts to determine the likelihood of repatriation, if handled with appropriate sensitivity, could make a significant difference in this respect. See infra, at 699-700. Finally, the Government argues that, whatever liberty interest the aliens possess, it is "greatly diminished" by their lack of a legal right to "liv[e] at large in this country." Brief for Respondents in No. 99-7791, at 47; see also post, at 703 (Scalia, J., dissenting) (characterizing right at issue as "right to release into this country"). The choice, however, is not between imprisonment and the alien "living at large." Brief for Respondents in No. 99-7791, at 47. It is between imprisonment and supervision under release conditions that may not be violated. See supra, at 695 (citing 8 U. S. C. §§ 1231(a)(3), 1253 (1994 ed., Supp. V)); 8 CFR § 241.5 (2001) (establishing conditions of release after removal period). And, for the reasons we have set forth, we believe that an alien's liberty interest is, at the least, strong enough to raise a serious question as to whether, irrespective of the procedures used, cf. post, at 722-724 (Kennedy, J., dissenting), the Constitution permits detention that is indefinite and potentially permanent. B Despite this constitutional problem, if "Congress has made its intent" in the statute "clear, `we must give effect to that intent.' " Miller v. French, 530 U. S. 327, 336 (2000) (quoting Sinclair Refining Co. v. Atkinson, 370 U. S. 195, 215 (1962)). 697 We cannot find here, however, any clear indication of congressional intent to grant the Attorney General the power to hold indefinitely in confinement an alien ordered removed. And that is so whether protecting the community from dangerous aliens is a primary or (as we believe) secondary statutory purpose. Cf. post, at 706, 708-709 (Kennedy, J., dissenting). After all, the provision is part of a statute that has as its basic purpose effectuating an alien's removal. Why should we assume that Congress saw the alien's dangerousness as unrelated to this purpose? The Government points to the statute's word "may." But while "may" suggests discretion, it does not necessarily suggest unlimited discretion. In that respect the word "may" is ambiguous. Indeed, if Congress had meant to authorize long-term detention of unremovable aliens, it certainly could have spoken in clearer terms. Cf. 8 U. S. C. § 1537(b)(2)(C) (1994 ed., Supp. V) ("If no country is willing to receive" a terrorist alien ordered removed, "the Attorney General may, notwithstanding any other provision of law, retain the alien in custody" and must review the detention determination every six months). The Government points to similar related statutes that require detention of criminal aliens during removal proceedings and the removal period, and argues that these show that mandatory detention is the rule while discretionary release is the narrow exception. See Brief for Petitioners in No. 00-38, at 26-28 (citing 8 U. S. C. §§ 1226(c), 1231(a)(2)). But the statute before us applies not only to terrorists and criminals, but also to ordinary visa violators, see supra, at 691; and, more importantly, post-removal-period detention, unlike detention pending a determination of removability or during the subsequent 90-day removal period, has no obvious termination point. The Government also points to the statute's history. That history catalogs a series of changes, from an initial period (before 1952) when lower courts had interpreted statutory 698 silence, Immigration Act of 1917, ch. 29, §§ 19, 20, 39 Stat. 889, 890, to mean that deportation-related detention must end within a reasonable time, Spector v. Landon, 209 F. 2d 481, 482 (CA9 1954) (collecting cases); United States ex rel. Doukas v. Wiley, 160 F. 2d 92, 95 (CA7 1947); United States ex rel. Ross v. Wallis, 279 F. 401, 403-404 (CA2 1922), to a period (from the early 1950's through the late 1980's) when the statutes permitted, but did not require, postdeportation-order detention for up to six months, Immigration and Nationality Act of 1952, § 242(c), 66 Stat. 210, 8 U. S. C. §§ 1252(c), (d) (1982 ed.); Witkovich, 353 U. S., at 198, to more recent statutes that have at times mandated and at other times permitted the post-deportation-order detention of aliens falling into certain categories such as aggravated felons, Anti-Drug Abuse Act of 1988, § 7343(a), 102 Stat. 4470, 8 U. S. C. § 1252(a)(2) (mandating detention); Immigration Act of 1990, § 504(a), 104 Stat. 5049-5050, 8 U. S. C. §§ 1252(a)(2)(A), (B) (permitting release under certain circumstances); Miscellaneous and Technical Immigration and Naturalization Amendments of 1991, § 306(a)(4), 105 Stat. 1751, 8 U. S. C. § 1252(a)(2)(B) (same). In early 1996, Congress explicitly expanded the group of aliens subject to mandatory detention, eliminating provisions that permitted release of criminal aliens who had at one time been lawfully admitted to the United States. Antiterrorism and Effective Death Penalty Act of 1996, § 439(c), 110 Stat. 1277. And later that year Congress enacted the present law, which liberalizes pre-existing law by shortening the removal period from six months to 90 days, mandates detention of certain criminal aliens during the removal proceedings and for the subsequent 90-day removal period, and adds the post-removal-period provision here at issue. Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Div. C, §§ 303, 305, 110 Stat. 3009-585, 3009-598 to 3009-599; 8 U. S. C. §§ 1226(c), 1231(a) (1994 ed., Supp. V). 699 We have found nothing in the history of these statutes that clearly demonstrates a congressional intent to authorize indefinite, perhaps permanent, detention. Consequently, interpreting the statute to avoid a serious constitutional threat, we conclude that, once removal is no longer reasonably foreseeable, continued detention is no longer authorized by statute. See 1 E. Coke, Institutes 70b ("Cessante ratione legis cessat ipse lex") (the rationale of a legal rule no longer being applicable, that rule itself no longer applies). IV The Government seems to argue that, even under our interpretation of the statute, a federal habeas court would have to accept the Government's view about whether the implicit statutory limitation is satisfied in a particular case, conducting little or no independent review of the matter. In our view, that is not so. Whether a set of particular circumstances amounts to detention within, or beyond, a period reasonably necessary to secure removal is determinative of whether the detention is, or is not, pursuant to statutory authority. The basic federal habeas corpus statute grants the federal courts authority to answer that question. See 28 U. S. C. § 2241(c)(3) (granting courts authority to determine whether detention is "in violation of the . . . laws . . . of the United States"). In doing so the courts carry out what this Court has described as the "historic purpose of the writ," namely, "to relieve detention by executive authorities without judicial trial." Brown v. Allen, 344 U. S. 443, 533 (1953) (Jackson, J., concurring in result). In answering that basic question, the habeas court must ask whether the detention in question exceeds a period reasonably necessary to secure removal. It should measure reasonableness primarily in terms of the statute's basic purpose, namely, assuring the alien's presence at the moment of removal. Thus, if removal is not reasonably foreseeable, the court should hold continued detention unreasonable and no 700 longer authorized by statute. In that case, of course, the alien's release may and should be conditioned on any of the various forms of supervised release that are appropriate in the circumstances, and the alien may no doubt be returned to custody upon a violation of those conditions. See supra, at 695 (citing 8 U. S. C. §§ 1231(a)(3), 1253 (1994 ed., Supp. V); 8 CFR § 241.5 (2001)). And if removal is reasonably foreseeable, the habeas court should consider the risk of the alien's committing further crimes as a factor potentially justifying confinement within that reasonable removal period. See supra, at 690-692. We recognize, as the Government points out, that review must take appropriate account of the greater immigrationrelated expertise of the Executive Branch, of the serious administrative needs and concerns inherent in the necessarily extensive INS efforts to enforce this complex statute, and the Nation's need to "speak with one voice" in immigration matters. Brief for Respondents in No. 99-7791, at 19. But we believe that courts can take appropriate account of such matters without abdicating their legal responsibility to review the lawfulness of an alien's continued detention. Ordinary principles of judicial review in this area recognize primary Executive Branch responsibility. They counsel judges to give expert agencies decisionmaking leeway in matters that invoke their expertise. See Pension Benefit Guaranty Corporation v. LTV Corp., 496 U. S. 633, 651-652 (1990). They recognize Executive Branch primacy in foreign policy matters. See Container Corp. of America v. Franchise Tax Bd., 463 U. S. 159, 196 (1983). And they consequently require courts to listen with care when the Government's foreign policy judgments, including, for example, the status of repatriation negotiations, are at issue, and to grant the Government appropriate leeway when its judgments rest upon foreign policy expertise. We realize that recognizing this necessary Executive leeway will often call for difficult judgments. In order to limit 701 the occasions when courts will need to make them, we think it practically necessary to recognize some presumptively reasonable period of detention. We have adopted similar presumptions in other contexts to guide lower court determinations. See Cheff v. Schnackenberg, 384 U. S. 373, 379-380 (1966) (plurality opinion) (adopting rule, based on definition of "petty offense" in United States Code, that right to jury trial extends to all cases in which sentence of six months or greater is imposed); County of Riverside v. McLaughlin, 500 U. S. 44, 56-58 (1991) (O'Connor, J.) (adopting presumption, based on lower court estimate of time needed to process arrestee, that 48-hour delay in probable-cause hearing after arrest is reasonable, hence constitutionally permissible). While an argument can be made for confining any presumption to 90 days, we doubt that when Congress shortened the removal period to 90 days in 1996 it believed that all reasonably foreseeable removals could be accomplished in that time. We do have reason to believe, however, that Congress previously doubted the constitutionality of detention for more than six months. See Juris. Statement in United States v. Witkovich, O. T. 1956, No. 295, pp. 8-9. Consequently, for the sake of uniform administration in the federal courts, we recognize that period. After this 6month period, once the alien provides good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future, the Government must respond with evidence sufficient to rebut that showing. And for detention to remain reasonable, as the period of prior postremoval confinement grows, what counts as the "reasonably foreseeable future" conversely would have to shrink. This 6-month presumption, of course, does not mean that every alien not removed must be released after six months. To the contrary, an alien may be held in confinement until it has been determined that there is no significant likelihood of removal in the reasonably foreseeable future. *702 V The Fifth Circuit held Zadvydas' continued detention lawful as long as "good faith efforts to effectuate . . . deportation continue" and Zadvydas failed to show that deportation will prove "impossible." 185 F. 3d, at 294, 297. But this standard would seem to require an alien seeking release to show the absence of any prospect of removalno matter how unlikely or unforeseeablewhich demands more than our reading of the statute can bear. The Ninth Circuit held that the Government was required to release Ma from detention because there was no reasonable likelihood of his removal in the foreseeable future. 208 F. 3d, at 831. But its conclusion may have rested solely upon the "absence" of an "extant or pending" repatriation agreement without giving due weight to the likelihood of successful future negotiations. See id., at 831, and n. 30. Consequently, we vacate the judgments below and remand both cases for further proceedings consistent with this opinion. It is so ordered.	When an alien has been found to be unlawfully present in the United States and a final order of removal has been entered, the Government ordinarily secures the alien's removal during a subsequent 90-day statutory "removal period," during which time the alien normally is held in custody. A special statute authorizes further detention if the Government fails to remove the alien during those 90 days. It says: "An alien ordered removed [1] who is inadmissible [2] [or] removable [as a result of violations of status requirements or entry conditions, violations of criminal law, or reasons of security or foreign policy] or [3] who has been determined by the Attorney General to be a risk to the community or unlikely to comply with the order of removal, may be detained beyond the removal period and, if released, shall be subject to [certain] terms of supervision" (a)(6) (1994 ed., Supp. V). In these cases, we must decide whether this postremoval-period statute authorizes the Attorney General to detain a removable alien indefinitely beyond the removal period or only for a period reasonably necessary to secure the alien's removal. We deal here with aliens who were admitted to the United States but subsequently ordered removed. Aliens who have not yet gained initial admission to this country would present a very different question. See infra, at 693-694. Based on our conclusion that indefinite detention of aliens in the former category would raise serious constitutional concerns, we construe the statute to contain an implicit "reasonable time" limitation, the application of which is subject to federal-court review. 683 I A The post-removal-period detention statute is one of a related set of statutes and regulations that govern detention during and after removal proceedings. While removal proceedings are in progress, most aliens may be released on bond or paroled. as added and amended, -585, (a)(2), (c) (1994 ed., Supp. V). After entry of a final removal order and during the 90-day removal period, however, aliens must be held in custody. 1231(a)(2). Subsequently, as the post-removal-period statute provides, the Government "may" continue to detain an alien who still remains here or release that alien under supervision. 1231(a)(6). Related Immigration and Naturalization Service (INS) regulations add that the INS District Director will initially review the alien's records to decide whether further detention or release under supervision is warranted after the 90-day removal period expires. 8 CFR 241.4(c)(1), (h), (k)(1)(i) (2001). If the decision is to detain, then an INS panel will review the matter further, at the expiration of a 3-month period or soon thereafter. 241.4(k)(2)(ii). And the panel will decide, on the basis of records and a possible personal interview, between still further detention or release under supervision. 241.4(i). In making this decision, the panel will consider, for example, the alien's disciplinary record, criminal record, mental health reports, evidence of rehabilitation, history of flight, prior immigration history, and favorable factors such as family ties. 241.4(f). To authorize release, the panel must find that the alien is not likely to be violent, to pose a threat to the community, to flee if released, or to violate the conditions of release. 241.4(e). And the alien must demonstrate "to the satisfaction of the Attorney General" that he will pose no danger or risk of flight. 684 241.4(d)(1). If the panel decides against release, it must review the matter again within a year, and can review it earlier if conditions change. 241.4(k)(2)(iii), (v). B 1 We consider two separate instances of detention. The first concerns Kestutis Zadvydas, a resident alien who was born, apparently of Lithuanian parents, in a displaced persons camp in Germany in 1948. When he was eight years old, Zadvydas immigrated to the United States with his parents and other family members, and he has lived here ever since. Zadvydas has a long criminal record, involving drug crimes, attempted robbery, attempted burglary, and theft. He has a history of flight, from both criminal and deportation proceedings. Most recently, he was convicted of possessing, with intent to distribute, cocaine; sentenced to 16 years' imprisonment; released on parole after two years; taken into INS custody; and, in 1994, ordered deported to Germany. See 8 U. S. C. 1251(a)(2) (1988 ed., Supp. V) (delineating crimes that make alien deportable). In 1994, Germany told the INS that it would not accept Zadvydas because he was not a German citizen. Shortly thereafter, Lithuania refused to accept Zadvydas because he was neither a Lithuanian citizen nor a permanent resident. In 1996, the INS asked the Dominican Republic (Zadvydas' wife's country) to accept him, but this effort proved unsuccessful. In 1998, Lithuania rejected, as inadequately documented, Zadvydas' effort to obtain Lithuanian citizenship based on his parents' citizenship; Zadvydas' reapplication is apparently still pending. The INS kept Zadvydas in custody after expiration of the removal period. In September 19, Zadvydas filed a petition for a writ of habeas corpus under 28 U. S. C. 2241 challenging 685 his continued detention. In October 1997, a Federal District Court granted that writ and ordered him released under supervision. (ED La.). In its view, the Government would never succeed in its efforts to remove Zadvydas from the United States, leading to his permanent confinement, contrary to the Constitution. The Fifth Circuit reversed this decision. It concluded that Zadvydas' detention did not violate the Constitution because eventual deportation was not "impossible," good-faith efforts to remove him from the United States continued, and his detention was subject to periodic administrative review. The Fifth Circuit stayed its mandate pending potential review in this Court. 2 The second case is that of Kim Ho Ma. Ma was born in Cambodia in 19. When he was two, his family fled, taking him to refugee camps in Thailand and the Philippines and eventually to the United States, where he has lived as a resident alien since the age of seven. In 19, at age 17, Ma was involved in a gang-related shooting, convicted of manslaughter, and sentenced to 38 months' imprisonment. He served two years, after which he was released into INS custody. In light of his conviction of an "aggravated felony," Ma was ordered removed. See 8 U. S. C. 1101(a)(43)(F) 1227(a)(2)(A)(iii) (1994 ed., Supp. IV) (aliens convicted of aggravated felonies are deportable). The 90-day removal period expired in early but the INS continued to keep Ma in custody, because, in light of his former gang membership, the nature of his crime, and his planned participation in a prison hunger strike, it was "unable to conclude that 686 Mr. Ma would remain nonviolent and not violate the conditions of release." App. to Pet. for Cert. in No. 00-38, p. 87a. In Ma filed a petition for a writ of habeas corpus under 28 U. S. C. 2241. A panel of five judges in the Federal District Court for the Western District of Washington, considering Ma's and about 100 similar cases together, issued a joint order holding that the Constitution forbids postremoval-period detention unless there is "a realistic chance that [the] alien will be deported" (thereby permitting classification of the detention as "in aid of deportation"). Binh The District Court then held an evidentiary hearing, decided that there was no "realistic chance" that Cambodia (which has no repatriation treaty with the United States) would accept Ma, and ordered Ma released. App. to Pet. for Cert. in No. 00-38, at 60a61a. The Ninth Circuit affirmed Ma's release. Kim Ho It concluded, based in part on constitutional concerns, that the statute did not authorize detention for more than a "reasonable time" beyond the 90-day period authorized for removal. And, given the lack of a repatriation agreement with Cambodia, that time had expired upon passage of the 90 days. 3 Zadvydas asked us to review the decision of the Fifth Circuit authorizing his continued detention. The Government asked us to review the decision of the Ninth Circuit forbidding Ma's continued detention. We granted writs in both cases, agreeing to consider both statutory and related constitutional questions. See also Duy Dac We consolidated the two cases for argument; and we now decide them together. 687 II We note at the outset that the primary federal habeas corpus statute, 28 U. S. C. 2241, confers jurisdiction upon the federal courts to hear these cases. See 2241(c)(3) (authorizing any person to claim in federal court that he or she is being held "in custody in violation of the Constitution or laws of the United States"). Before 12, the federal courts considered challenges to the lawfulness of immigration-related detention, including challenges to the validity of a deportation order, in habeas proceedings. See Beginning in 12, an alternative method for review of deportation orders, namely, actions brought in federal district court under the Administrative Procedure Act (APA), became available. See And in 1 Congress replaced district court APA review with initial deportation order review in courts of appeals. See Act of Sept. 26, 1, 5, (formerly codified at 8 U. S. C. 1105a(a)) (repealed 1996). The 1 Act specified that federal habeas courts were also available to hear statutory and constitutional challenges to deportation (and exclusion) orders. See 8 U. S. C. 1105a(a)(10), (b) (repealed 1996). These statutory changes left habeas untouched as the basic method for obtaining review of continued custody after a deportation order had become final. See Cheng Fan (holding that 1105a(a) applied only to challenges to determinations made during deportation proceedings and motions to reopen those proceedings). More recently, Congress has enacted several statutory provisions that limit the circumstances in which judicial review of deportation decisions is available. But none applies here. One provision, (h) (1994 ed., Supp. V), simply forbids courts to construe that section "to create any procedural right or benefit that is legally enforceable"; 688 it does not deprive an alien of the right to rely on 28 U. S. C. 2241 to challenge detention that is without statutory authority. Another provision, 8 U. S. C. 1252(a)(2)(B)(ii) (1994 ed., Supp. V), says that "no court shall have jurisdiction to review" decisions "specified to be in the discretion of the Attorney General." The aliens here, however, do not seek review of the Attorney General's exercise of discretion; rather, they challenge the extent of the Attorney General's authority under the post-removal-period detention statute. And the extent of that authority is not a matter of discretion. See also, e. g., 1226(e) (applicable to certain detentionrelated decisions in period preceding entry of final removal order); 1231(a)(4)(D) (applicable to assertion of causes or claims under 1231(a)(4), which is not at issue here); 1252(a)(1), (a)(2)(C) (applicable to judicial review of "final order[s] of removal"); 1252(g) (applicable to decisions "to commence proceedings, adjudicate cases, or execute removal orders"). We conclude that 2241 habeas corpus proceedings remain available as a forum for statutory and constitutional challenges to post-removal-period detention. And we turn to the merits of the aliens' claims. III The post-removal-period detention statute applies to certain categories of aliens who have been ordered removed, namely, inadmissible aliens, criminal aliens, aliens who have violated their nonimmigrant status conditions, and aliens removable for certain national security or foreign relations reasons, as well as any alien "who has been determined by the Attorney General to be a risk to the community or unlikely to comply with the order of removal." (a)(6) (1994 ed., Supp. V); see also 8 CFR 241.4(a) (2001). It says that an alien who falls into one of these categories 689 "may be detained beyond the removal period and, if released, shall be subject to [certain] terms of supervision." (a)(6) (1994 ed., Supp. V). The Government argues that the statute means what it literally says. It sets no "limit on the length of time beyond the removal period that an alien who falls within one of the Section 1231(a)(6) categories may be detained." Brief for Petitioners in No. 00-38, p. 22. Hence, "whether to continue to detain such an alien and, if so, in what circumstances and for how long" is up to the Attorney General, not up to the courts. "[I]t is a cardinal principle" of statutory interpretation, however, that when an Act of Congress raises "a serious doubt" as to its constitutionality, "this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided." ; see also United ; United ; cf. We have read significant limitations into other immigration statutes in order to avoid their constitutional invalidation. See United (construing a grant of authority to the Attorney General to ask aliens whatever questions he "deem[s] fit and proper" as limited to questions "reasonably calculated to keep the Attorney General advised regarding the continued availability for departure of aliens whose deportation is overdue"). For similar reasons, we read an implicit limitation into the statute before us. In our view, the statute, read in light of the Constitution's demands, limits an alien's post-removalperiod detention to a period reasonably necessary to bring about that alien's removal from the United States. It does not permit indefinite detention. 690 A A statute permitting indefinite detention of an alien would raise a serious constitutional problem. The Fifth Amendment's Due Process Clause forbids the Government to "depriv[e]" any "person of liberty without due process of law." Freedom from imprisonmentfrom government custody, detention, or other forms of physical restraintlies at the heart of the liberty that Clause protects. See And this Court has said that government detention violates that Clause unless the detention is ordered in a criminal proceeding with adequate procedural protections, see United or, in certain special and "narrow" nonpunitive "circumstances," at where a special justification, such as harm-threatening mental illness, outweighs the "individual's constitutionally protected interest in avoiding physical restraint." The proceedings at issue here are civil, not criminal, and we assume that they are nonpunitive in purpose and effect. There is no sufficiently strong special justification here for indefinite civil detentionat least as administered under this statute. The statute, says the Government, has two regulatory goals: "ensuring the appearance of aliens at future immigration proceedings" and "[p]reventing danger to the community." Brief for Respondents in No. 99-91, p. 24. But by definition the first justificationpreventing flightis weak or nonexistent where removal seems a remote possibility at best. As this Court said in where detention's goal is no longer practically attainable, detention no longer "bear[s] [a] reasonable relation to the purpose for which the individual [was] committed." The second justificationprotecting the communitydoes not necessarily diminish in force over time. But we have 691 upheld preventive detention based on dangerousness only when limited to specially dangerous individuals and subject to strong procedural protections. Compare and with In cases in which preventive detention is of potentially indefinite duration, we have also demanded that the dangerousness rationale be accompanied by some other special circumstance, such as mental illness, that helps to create the danger. See The civil confinement here at issue is not limited, but potentially permanent. Cf. ; The provision authorizing detention does not apply narrowly to "a small segment of particularly dangerous individuals," say, suspected terrorists, but broadly to aliens ordered removed for many and various reasons, including tourist visa violations. See (a)(6) (1994 ed., Supp. V) (referencing 1227(a)(1)(C)); cf. 358 (only individuals with "past sexually violent behavior and a present mental condition that creates a likelihood of such conduct in the future" may be detained). And, once the flight risk justification evaporates, the only special circumstance 692 present is the alien's removable status itself, which bears no relation to a detainee's dangerousness. Cf. ; Moreover, the sole procedural protections available to the alien are found in administrative proceedings, where the alien bears the burden of proving he is not dangerous, without (in the Government's view) significant later judicial review. Compare 8 CFR 241.4(d)(1) (2001) with This Court has suggested, however, that the Constitution may well preclude granting "an administrative body the unreviewable authority to make determinations implicating fundamental rights." Superintendent, Mass. Correctional Institution at ; see also ("[U]nder certain circumstances, the constitutional requirement of due process is a requirement of judicial process"). The Constitution demands greater procedural protection even for property. See South ; The serious constitutional problem arising out of a statute that, in these circumstances, permits an indefinite, perhaps permanent, deprivation of human liberty without any such protection is obvious. The Government argues that, from a constitutional perspective, alien status itself can justify indefinite detention, and points to as support. That case involved a once lawfully admitted alien who left the United States, returned after a trip abroad, was refused admission, and was left on Ellis Island, indefinitely detained there because the Government could not find another country to accept him. The Court held that 's detention did not violate the Constitution. 693 Although like the present cases, involves indefinite detention, it differs from the present cases in a critical respect. As the Court emphasized, the alien's extended departure from the United States required him to seek entry into this country once again. His presence on Ellis Island did not count as entry into the United States. Hence, he was "treated," for constitutional purposes, "as if stopped at the border." And that made all the difference. The distinction between an alien who has effected an entry into the United States and one who has never entered runs throughout immigration law. See ; Leng May It is well established that certain constitutional protections available to persons inside the United States are unavailable to aliens outside of our geographic borders. See United ; 4 But once an alien enters the country, the legal circumstance changes, for the Due Process Clause applies to all "persons" within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent. See ; ; Kwong Hai ; Yick 118 U. S. ; cf. Indeed, this Court has held that the Due Process 694 Clause protects an alien subject to a final order of deportation, see ng though the nature of that protection may vary depending upon status and circumstance, see ; at 0. In ng the Court held unconstitutional a statute that imposed a year of hard labor upon aliens subject to a final deportation order. That case concerned substantive protections for aliens who had been ordered removed, not procedural protections for aliens whose removability was being determined. Cf. post, at 704 (Scalia, J., dissenting). The Court held that punitive measures could not be imposed upon aliens ordered removed because "all persons within the territory of the United States are entitled to the protection" of the Constitution. 163 U. S., at (citing Yick at ); see also 201 And contrary to Justice Scalia's characterization, see post, at 703-705, in itself, both this Court's rejection of 's challenge to the procedures by which he was deemed excludable and its rejection of his challenge to continued detention rested upon a basic territorial distinction. See (holding that 's presence on Ellis Island was not "considered a landing" and did "not affec[t]" his legal or constitutional status (internal quotation marks omitted)). In light of this critical distinction between and the present cases, does not offer the Government significant support, and we need not consider the aliens' claim that subsequent developments have undermined `s legal authority. See Brief for Petitioner in No. 99-91, p. 23; Brief for Respondent in No. 00-38, pp. 16-17; Brief for Lawyers' Committee for Human Rights as Amicus Curiae in No. 00-38, pp. 15-20. Nor are we aware of any other authority that would support Justice Kennedy's limitation of 6 due process protection for removable aliens to freedom from detention that is arbitrary or capricious. See post, at 717 722 (dissenting opinion). The Government also looks for support to cases holding that Congress has "plenary power" to create immigration law, and that the Judicial Branch must defer to Executive and Legislative Branch decisionmaking in that area. Brief for Respondents in No. 99-91, at 17, 20 ). But that power is subject to important constitutional limitations. See 4 U. S. 919, ; The Chinese Exclusion Case, In these cases, we focus upon those limitations. In doing so, we nowhere deny the right of Congress to remove aliens, to subject them to supervision with conditions when released from detention, or to incarcerate them where appropriate for violations of those conditions. See (a)(3) (1994 ed., Supp. V) (granting authority to Attorney General to prescribe regulations governing supervision of aliens not removed within 90 days); 1253 (imposing penalties for failure to comply with release conditions). The question before us is not one of "`confer[ring] on those admitted the right to remain against the national will' " or "`sufferance of aliens' " who should be removed. Post, at 703 (Scalia, J., dissenting) (emphasis deleted) (quoting -223 ). Rather, the issue we address is whether aliens that the Government finds itself unable to remove are to be condemned to an indefinite term of imprisonment within the United States. Nor do the cases before us require us to consider the political branches' authority to control entry into the United States. Hence we leave no "unprotected spot in the Nation's 696 armor." Kwong Hai Neither do we consider terrorism or other special circumstances where special arguments might be made for forms of preventive detention and for heightened deference to the judgments of the political branches with respect to matters of national security. The sole foreign policy consideration the Government mentions here is the concern lest courts interfere with "sensitive" repatriation negotiations. Brief for Respondents in No. 99-91, at 21. But neither the Government nor the dissents explain how a habeas court's efforts to determine the likelihood of repatriation, if handled with appropriate sensitivity, could make a significant difference in this respect. See infra, at 699-700. Finally, the Government argues that, whatever liberty interest the aliens possess, it is "greatly diminished" by their lack of a legal right to "liv[e] at large in this country." Brief for Respondents in No. 99-91, at 47; see also post, at 703 (Scalia, J., dissenting) (characterizing right at issue as "right to release into this country"). The choice, however, is not between imprisonment and the alien "living at large." Brief for Respondents in No. 99-91, at 47. It is between imprisonment and supervision under release conditions that may not be violated. See at 6 (citing 8 U. S. C. 1231(a)(3), 1253 (1994 ed., Supp. V)); 8 CFR 241.5 (2001) And, for the reasons we have set forth, we believe that an alien's liberty interest is, at the least, strong enough to raise a serious question as to whether, irrespective of the procedures used, cf. post, at 722-724 (Kennedy, J., dissenting), the Constitution permits detention that is indefinite and potentially permanent. B Despite this constitutional problem, if "Congress has made its intent" in the statute "clear, `we must give effect to that intent.' " (quoting Sinclair Refining (19)). 697 We cannot find here, however, any clear indication of congressional intent to grant the Attorney General the power to hold indefinitely in confinement an alien ordered removed. And that is so whether protecting the community from dangerous aliens is a primary or (as we believe) secondary statutory purpose. Cf. post, at 706, 708-709 (Kennedy, J., dissenting). After all, the provision is part of a statute that has as its basic purpose effectuating an alien's removal. Why should we assume that Congress saw the alien's dangerousness as unrelated to this purpose? The Government points to the statute's word "may." But while "may" suggests discretion, it does not necessarily suggest unlimited discretion. In that respect the word "may" is ambiguous. Indeed, if Congress had meant to authorize long-term detention of unremovable aliens, it certainly could have spoken in clearer terms. Cf. 8 U. S. C. 1537(b)(2)(C) (1994 ed., Supp. V) ("If no country is willing to receive" a terrorist alien ordered removed, "the Attorney General may, notwithstanding any other provision of law, retain the alien in custody" and must review the detention determination every six months). The Government points to similar related statutes that require detention of criminal aliens during removal proceedings and the removal period, and argues that these show that mandatory detention is the rule while discretionary release is the narrow exception. See Brief for Petitioners in No. 00-38, at 26-28 (citing (c), 1231(a)(2)). But the statute before us applies not only to terrorists and criminals, but also to ordinary visa violators, see ; and, more importantly, post-removal-period detention, unlike detention pending a determination of removability or during the subsequent 90-day removal period, has no obvious termination point. The Government also points to the statute's history. That history catalogs a series of changes, from an initial period when lower courts had interpreted statutory 698 silence, Immigration Act of 1917, ch. 29, 19, 20, 890, to mean that deportation-related detention must end within a reasonable time, ; United States ex rel. ; United States ex rel. 279 F. to a period (from the early 10's through the late 19's) when the statutes permitted, but did not require, postdeportation-order detention for up to six months, Immigration and Nationality Act of 12, 242(c), 66 Stat. 8 U. S. C. 1252(c), (d) (1982 ed.); to more recent statutes that have at times mandated and at other times permitted the post-deportation-order detention of aliens falling into certain categories such as aggravated felons, Anti-Drug Abuse Act of 1988, 7343(a), 8 U. S. C. 1252(a)(2) ; Immigration Act of 1990, 504(a), -5050, 8 U. S. C. 1252(a)(2)(A), (B) (permitting release under certain circumstances); Miscellaneous and Technical Immigration and Naturalization Amendments of 1991, 306(a)(4), 8 U. S. C. 1252(a)(2)(B) In early 1996, Congress explicitly expanded the group of aliens subject to mandatory detention, eliminating provisions that permitted release of criminal aliens who had at one time been lawfully admitted to the United States. Antiterrorism and Effective Death Penalty Act of 1996, 439(c), 110 Stat. 12. And later that year Congress enacted the present law, which liberalizes pre-existing law by shortening the removal period from six months to 90 days, mandates detention of certain criminal aliens during the removal proceedings and for the subsequent 90-day removal period, and adds the post-removal-period provision here at issue. Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Div. C, 303, 305, -585, 3009-598 to 3009-599; (c), 1231(a) (1994 ed., Supp. V). 699 We have found nothing in the history of these statutes that clearly demonstrates a congressional intent to authorize indefinite, perhaps permanent, detention. Consequently, interpreting the statute to avoid a serious constitutional threat, we conclude that, once removal is no longer reasonably foreseeable, continued detention is no longer authorized by statute. See 1 E. Coke, Institutes 70b ("Cessante ratione legis cessat ipse lex") (the rationale of a legal rule no longer being applicable, that rule itself no longer applies). IV The Government seems to argue that, even under our interpretation of the statute, a federal habeas court would have to accept the Government's view about whether the implicit statutory limitation is satisfied in a particular case, conducting little or no independent review of the matter. In our view, that is not so. Whether a set of particular circumstances amounts to detention within, or beyond, a period reasonably necessary to secure removal is determinative of whether the detention is, or is not, pursuant to statutory authority. The basic federal habeas corpus statute grants the federal courts authority to answer that question. See 28 U. S. C. 2241(c)(3) In doing so the courts carry out what this Court has described as the "historic purpose of the writ," namely, "to relieve detention by executive authorities without judicial trial." In answering that basic question, the habeas court must ask whether the detention in question exceeds a period reasonably necessary to secure removal. It should measure reasonableness primarily in terms of the statute's basic purpose, namely, assuring the alien's presence at the moment of removal. Thus, if removal is not reasonably foreseeable, the court should hold continued detention unreasonable and no 700 longer authorized by statute. In that case, of course, the alien's release may and should be conditioned on any of the various forms of supervised release that are appropriate in the circumstances, and the alien may no doubt be returned to custody upon a violation of those conditions. See at 6 (citing 8 U. S. C. 1231(a)(3), 1253 (1994 ed., Supp. V); 8 CFR 241.5 (2001)). And if removal is reasonably foreseeable, the habeas court should consider the risk of the alien's committing further crimes as a factor potentially justifying confinement within that reasonable removal period. See We recognize, as the Government points out, that review must take appropriate account of the greater immigrationrelated expertise of the Executive Branch, of the serious administrative needs and concerns inherent in the necessarily extensive INS efforts to enforce this complex statute, and the Nation's need to "speak with one voice" in immigration matters. Brief for Respondents in No. 99-91, at 19. But we believe that courts can take appropriate account of such matters without abdicating their legal responsibility to review the lawfulness of an alien's continued detention. Ordinary principles of judicial review in this area recognize primary Executive Branch responsibility. They counsel judges to give expert agencies decisionmaking leeway in matters that invoke their expertise. See Pension Benefit Guaranty They recognize Executive Branch primacy in foreign policy matters. See Container Corp. of And they consequently require courts to listen with care when the Government's foreign policy judgments, including, for example, the status of repatriation negotiations, are at issue, and to grant the Government appropriate leeway when its judgments rest upon foreign policy expertise. We realize that recognizing this necessary Executive leeway will often call for difficult judgments. In order to limit 701 the occasions when courts will need to make them, we think it practically necessary to recognize some presumptively reasonable period of detention. We have adopted similar presumptions in other contexts to guide lower court determinations. See 379-3 (6) (adopting rule, based on definition of "petty offense" in United States Code, that right to jury trial extends to all cases in which sentence of six months or greater is imposed); County of (adopting presumption, based on lower court estimate of time needed to process arrestee, that 48-hour delay in probable-cause hearing after arrest is reasonable, hence constitutionally permissible). While an argument can be made for confining any presumption to 90 days, we doubt that when Congress shortened the removal period to 90 days in 1996 it believed that all reasonably foreseeable removals could be accomplished in that time. We do have reason to believe, however, that Congress previously doubted the constitutionality of detention for more than six months. See Juris. Statement in United O. T. 16, No. 2, pp. 8-9. Consequently, for the sake of uniform administration in the federal courts, we recognize that period. After this 6month period, once the alien provides good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future, the Government must respond with evidence sufficient to rebut that showing. And for detention to remain reasonable, as the period of prior postremoval confinement grows, what counts as the "reasonably foreseeable future" conversely would have to shrink. This 6-month presumption, of course, does not mean that every alien not removed must be released after six months. To the contrary, an alien may be held in confinement until it has been determined that there is no significant likelihood of removal in the reasonably foreseeable future. *702 V The Fifth Circuit held Zadvydas' continued detention lawful as long as "good faith efforts to effectuate deportation continue" and Zadvydas failed to show that deportation will prove "impossible." 185 F. 3d, But this standard would seem to require an alien seeking release to show the absence of any prospect of removalno matter how unlikely or unforeseeablewhich demands more than our reading of the statute can bear. The Ninth Circuit held that the Government was required to release Ma from detention because there was no reasonable likelihood of his removal in the foreseeable future. But its conclusion may have rested solely upon the "absence" of an "extant or pending" repatriation agreement without giving due weight to the likelihood of successful future negotiations. See and n. 30. Consequently, we vacate the judgments below and remand both cases for further proceedings consistent with this opinion. It is so ordered.	1,901
Justice Scalia	dissenting	false	Zadvydas v. Davis	2001-06-28	null	https://www.courtlistener.com/opinion/1269289/zadvydas-v-davis/	https://www.courtlistener.com/api/rest/v3/clusters/1269289/	2,001	2000-087	2	5	4	I join Part I of Justice Kennedy's dissent, which establishes the Attorney General's clear statutory authority to detain criminal aliens with no specified time limit. I write separately because I do not believe that, as Justice Kennedy suggests in Part II of his opinion, there may be some situations in which the courts can order release. I believe that in both Zadvydas v. Davis, No. 99-7791, and Ashcroft v. Ma, No. 00-38, a "careful description" of the substantive right claimed, Reno v. Flores, 507 U. S. 292, 302 (1993), suffices categorically to refute its existence. A criminal alien under final order of removal who allegedly will not be accepted by any other country in the reasonably foreseeable future claims a constitutional right of supervised release into the United States. This claim can be repackaged as freedom 703 from "physical restraint" or freedom from "indefinite detention," ante, at 689, 690, but it is at bottom a claimed right of release into this country by an individual who concededly has no legal right to be here. There is no such constitutional right. Like a criminal alien under final order of removal, an inadmissible alien at the border has no right to be in the United States. The Chinese Exclusion Case, 130 U. S. 581, 603 (1889). In Shaughnessy v. United States ex rel. Mezei, 345 U. S. 206 (1953), we upheld potentially indefinite detention of such an inadmissible alien whom the Government was unable to return anywhere else. We said that "we [did] not think that respondent's continued exclusion deprives him of any statutory or constitutional right." Id., at 215. While four Members of the Court thought that Mezei deserved greater procedural protections (the Attorney General had refused to divulge any information as to why Mezei was being detained, id., at 209), no Justice asserted that Mezei had a substantive constitutional right to release into this country. And Justice Jackson's dissent, joined by Justice Frankfurter, affirmatively asserted the opposite, with no contradiction from the Court: "Due process does not invest any alien with a right to enter the United States, nor confer on those admitted the right to remain against the national will. Nothing in the Constitution requires admission or sufferance of aliens hostile to our scheme of government." Id., at 222-223 (emphasis added). Insofar as a claimed legal right to release into this country is concerned, an alien under final order of removal stands on an equal footing with an inadmissible alien at the threshold of entry: He has no such right. The Court expressly declines to apply or overrule Mezei, ante, at 694, but attempts to distinguish itor, I should rather say, to obscure it in a legal fog. First, the Court claims that "[t]he distinction between an alien who has effected an entry into the United States and one who has never entered runs throughout immigration law." Ante, at 693. True enough, but only where that distinction makes perfect 704 sense: with regard to the question of what procedures are necessary to prevent entry, as opposed to what procedures are necessary to eject a person already in the United States. See, e. g., Landon v. Plasencia, 459 U. S. 21, 32 (1982) ("Our cases have frequently suggested that a continuously present resident alien is entitled to a fair hearing when threatened with deportation " (emphasis added)). The Court's citation of Wong Wing v. United States, 163 U. S. 228 (1896), for the proposition that we have "held that the Due Process Clause protects an alien subject to a final order of deportation," ante, at 693-694, is arguably relevant. That case at least involved aliens under final order of deportation.[] But all it held is that they could not be subjected to the punishment of hard labor without a judicial trial. I am sure they cannot be tortured, as wellbut neither prohibition has anything to do with their right to be released into the United States. Nor does Wong Wing show that the rights of detained aliens subject to final order of deportation are different from the rights of aliens arrested and detained at the borderunless the Court believes that the detained alien in Mezei could have been set to hard labor. Mezei thus stands unexplained and undistinguished by the Court's opinion. We are offered no justification why an alien under a valid and final order of removalwhich has totally extinguished whatever right to presence in this country he possessedhas any greater due process right to be released into the country than an alien at the border seeking entry. 705 Congress undoubtedly thought that both groups of aliens inadmissible aliens at the threshold and criminal aliens under final order of removalcould be constitutionally detained on the same terms, since it provided the authority to detain both groups in the very same statutory provision, see 8 U. S. C. § 1231(a)(6). Because I believe Mezei controls these cases, and, like the Court, I also see no reason to reconsider Mezei, I find no constitutional impediment to the discretion Congress gave to the Attorney General. Justice Kennedy's dissent explains the clarity of the detention provision, and I see no obstacle to following the statute's plain meaning.	I join Part I of Justice Kennedy's dissent, which establishes the Attorney General's clear statutory authority to detain criminal aliens with no specified time limit. I write separately because I do not believe that, as Justice Kennedy suggests in Part II of his opinion, there may be some situations in which the courts can order release. I believe that in both Zadvydas v. Davis, No. 99-7791, and Ashcroft v. Ma, No. 00-38, a "careful description" of the substantive right claimed, suffices categorically to refute its existence. A criminal alien under final order of removal who allegedly will not be accepted by any other country in the reasonably foreseeable future claims a constitutional right of supervised release into the United States. This claim can be repackaged as freedom 703 from "physical restraint" or freedom from "indefinite detention," ante, at 689, 690, but it is at bottom a claimed right of release into this country by an individual who concededly has no legal right to be here. There is no such constitutional right. Like a criminal alien under final order of removal, an inadmissible alien at the border has no right to be in the United States. The Chinese Exclusion Case, In we upheld potentially indefinite detention of such an inadmissible alien whom the Government was unable to return anywhere else. We said that "we [did] not think that respondent's continued exclusion deprives him of any statutory or constitutional right." While four Members of the Court thought that Mezei deserved greater procedural protections (the Attorney General had refused to divulge any information as to why Mezei was being detained, ), no Justice asserted that Mezei had a substantive constitutional right to release into this country. And Justice Jackson's dissent, joined by Justice Frankfurter, affirmatively asserted the opposite, with no contradiction from the Court: "Due process does not invest any alien with a right to enter the United States, nor confer on those admitted the right to remain against the national will. Nothing in the Constitution requires admission or sufferance of aliens hostile to our scheme of government." Insofar as a claimed legal right to release into this country is concerned, an alien under final order of removal stands on an equal footing with an inadmissible alien at the threshold of entry: He has no such right. The Court expressly declines to apply or overrule Mezei, ante, at 694, but attempts to distinguish itor, I should rather say, to obscure it in a legal fog. First, the Court claims that "[t]he distinction between an alien who has effected an entry into the United States and one who has never entered runs throughout immigration law." Ante, at 693. True enough, but only where that distinction makes perfect 704 sense: with regard to the question of what procedures are necessary to prevent entry, as opposed to what procedures are necessary to eject a person already in the United States. See, e. g., ("Our cases have frequently suggested that a continuously present resident alien is entitled to a fair hearing when threatened with deportation " ). The Court's citation of Wong for the proposition that we have "held that the Due Process Clause protects an alien subject to a final order of deportation," ante, at 693-694, is arguably relevant. That case at least involved aliens under final order of deportation.[] But all it held is that they could not be subjected to the punishment of hard labor without a judicial trial. I am sure they cannot be tortured, as wellbut neither prohibition has anything to do with their right to be released into the United States. Nor does Wong Wing show that the rights of detained aliens subject to final order of deportation are different from the rights of aliens arrested and detained at the borderunless the Court believes that the detained alien in Mezei could have been set to hard labor. Mezei thus stands unexplained and undistinguished by the Court's opinion. We are offered no justification why an alien under a valid and final order of removalwhich has totally extinguished whatever right to presence in this country he possessedhas any greater due process right to be released into the country than an alien at the border seeking entry. 705 Congress undoubtedly thought that both groups of aliens inadmissible aliens at the threshold and criminal aliens under final order of removalcould be constitutionally detained on the same terms, since it provided the authority to detain both groups in the very same statutory provision, see (a)(6). Because I believe Mezei controls these cases, and, like the Court, I also see no reason to reconsider Mezei, I find no constitutional impediment to the discretion Congress gave to the Attorney General. Justice Kennedy's dissent explains the clarity of the detention provision, and I see no obstacle to following the statute's plain meaning.	1,902
Justice Kennedy	second_dissenting	false	Zadvydas v. Davis	2001-06-28	null	https://www.courtlistener.com/opinion/1269289/zadvydas-v-davis/	https://www.courtlistener.com/api/rest/v3/clusters/1269289/	2,001	2000-087	2	5	4	The Court says its duty is to avoid a constitutional question. It deems the duty performed by interpreting a statute in obvious disregard of congressional intent; curing the resulting gap by writing a statutory amendment of its own; committing its own grave constitutional error by arrogating to the Judicial Branch the power to summon high officers of the Executive to assess their progress in conducting some of the Nation's most sensitive negotiations with foreign powers; and then likely releasing into our general population at least hundreds of removable or inadmissible aliens who have been found by fair procedures to be flight risks, dangers to the community, or both. Far from avoiding a constitutional question, the Court's ruling causes systemic dislocation in the balance of powers, thus raising serious constitutional concerns not just for the cases at hand but for the Court's own view of its proper authority. Any supposed respect the Court seeks in not reaching the constitutional question is outweighed by the intrusive and erroneous exercise of its own powers. In the guise of judicial restraint the Court ought not to intrude upon the other branches. The constitutional question the statute presents, it must be acknowledged, 706 may be a significant one in some later case; but it ought not to drive us to an incorrect interpretation of the statute. The Court having reached the wrong result for the wrong reason, this respectful dissent is required. I The Immigration and Nationality Act (INA), 8 U. S. C. § 1101 et seq. (1994 ed. and Supp. V), is straightforward enough. It provides: "An alien ordered removed who is inadmissible under section 1182 of this title, removable under section 1227(a)(1)(C), 1227(a)(2), or 1227(a)(4) of this title or who has been determined by the Attorney General to be a risk to the community or unlikely to comply with the order of removal, may be detained beyond the removal period and, if released, shall be subject to the terms of supervision in paragraph (3)." 8 U. S. C. § 1231(a)(6) (1994 ed., Supp. V). By this statute, Congress confers upon the Attorney General discretion to detain an alien ordered removed. It gives express authorization to detain "beyond the removal period." Ibid. The class of removed aliens detainable under the section includes aliens who were inadmissible and aliens subject to final orders of removal, provided they are a risk to the community or likely to flee. The issue to be determined is whether the authorization to detain beyond the removal period is subject to the implied, nontextual limitation that the detention be no longer than reasonably necessary to effect removal to another country. The majority invokes the canon of constitutional doubt to read that implied term into the statute. One can accept the premise that a substantial constitutional question is presented by the prospect of lengthy, even unending, detention in some instances; but the statutory construction the Court adopts should be rejected in any event. The interpretation has no basis in the language 707 or structure of the INA and in fact contradicts and defeats the purpose set forth in the express terms of the statutory text. The Court, it is submitted, misunderstands the principle of constitutional avoidance which it seeks to invoke. The majority gives a brief bow to the rule that courts must respect the intention of Congress, ante, at 696, but then waltzes away from any analysis of the language, structure, or purpose of the statute. Its analysis is not consistent with our precedents explaining the limits of the constitutional doubt rule. The rule allows courts to choose among constructions which are "fairly possible," Crowell v. Benson, 285 U. S. 22, 62 (1932), not to "`press statutory construction to the point of disingenuous evasion even to avoid a constitutional question,' " Salinas v. United States, 522 U. S. 52, 60 (1997) (quoting Seminole Tribe of Fla. v. Florida, 517 U. S. 44, 57, n. 9 (1996)). Were a court to find two interpretations of equal plausibility, it should choose the construction that avoids confronting a constitutional question. The majority's reading of the statutory authorization to "detai[n] beyond the removal period," however, is not plausible. An interpretation which defeats the stated congressional purpose does not suffice to invoke the constitutional doubt rule, for it is "plainly contrary to the intent of Congress." United States v. X-Citement Video, Inc., 513 U. S. 64, 78 (1994). The majority announces it will reject the Government's argument "that the statute means what it literally says," ante, at 689, but then declines to offer any other acceptable textual interpretation. The majority does not demonstrate an ambiguity in the delegation of the detention power to the Attorney General. It simply amends the statute to impose a time limit tied to the progress of negotiations to effect the aliens' removal. The statute cannot be so construed. The requirement the majority reads into the law simply bears no relation to the text; and in fact it defeats the statutory purpose and design. 708 Other provisions in § 1231 itself do link the requirement of a reasonable time period to the removal process. See, e. g., § 1231(c)(1)(A) (providing that an alien who arrives at a port of entry "shall be removed immediately on a vessel or aircraft" unless "it is impracticable" to do so "within a reasonable time" (emphasis added)); § 1231(c)(3)(A)(ii)(II) (requiring the "owner of a vessel or aircraft bringing an alien to the United States [to] pay the costs of detaining and maintaining the alien . . . for the period of time reasonably necessary for the owner to arrange for repatriation" (emphasis added)). That Congress chose to impose the limitation in these sections and not in § 1231(a)(6) is evidence of its intent to measure the detention period by other standards. When Congress has made express provisions for the contingency that repatriation might be difficult or prolonged in other portions of the statute, it should be presumed that its omission of the same contingency in the detention section was purposeful. Indeed, the reasonable time limits in the provisions just mentioned simply excuse the duty of early removal. They do not mandate release. An alien within one of these categories, say, a ship stowaway, would be subject as well to detention beyond the removal period under § 1231(a)(6), if the statute is read as written. Under the majority's view, however, it appears the alien must be released in six months even if presenting a real danger to the community. The 6-month period invented by the Court, even when modified by its sliding standard of reasonableness for certain repatriation negotiations, see ante, at 701, makes the statutory purpose to protect the community ineffective. The risk to the community exists whether or not the repatriation negotiations have some end in sight; in fact, when the negotiations end, the risk may be greater. The authority to detain beyond the removal period is to protect the community, not to negotiate the aliens' return. The risk to the community survives repatriation negotiations. To a more limited, but still significant, extent, so does the concern with flight. It 709 is a fact of international diplomacy that governments and their policies change; and if repatriation efforts can be revived, the Attorney General has an interest in ensuring the alien can report so the removal process can begin again. Congress, moreover, was well aware of the difficulties confronting aliens who are removable but who cannot be repatriated. It made special provisions allowing them to be employed, a privilege denied to other deportable aliens. See § 1231(a)(7) (providing an "alien [who] cannot be removed due to the refusal of all countries designated by the alien or under this section to receive the alien" still remains eligible for employment in the United States). Congress' decision to ameliorate the condition of aliens subject to a final order of removal who cannot be repatriated, but who need not be detained, illustrates a balance in the statutory design. Yet the Court renders the other side of the balance meaningless. The risk to the community posed by a removable alien is a function of a variety of circumstances, circumstances that do not diminish just because the alien cannot be deported within some foreseeable time. Those circumstances include the seriousness of the alien's past offenses, his or her efforts at rehabilitation, and some indication from the alien that, given the real prospect of detention, the alien will conform his or her conduct. This is the purpose for the periodic review of detention status provided for by the regulations. See 8 CFR § 241.4 (2001). The Court's amendment of the statute reads out of the provision the congressional decision that dangerousness alone is a sufficient basis for detention, see ante, at 699 (citing 1 E. Coke, Institutes 70b), and reads out as well any meaningful structure for supervised release. The majority is correct to observe that in United States v. Witkovich, 353 U. S. 194 (1957), the Court "read significant limitations into" a statute, ante, at 689, but that does not permit us to avoid the proper reading of the enactment now before us. In Witkovich, the Court construed former § 1252(d), which required an alien under a final order of deportation 710 "to give information under oath . . . as the Attorney General may deem fit and proper." 353 U. S., at 195. The Court held that although the plain language "appears to confer upon the Attorney General unbounded authority to require whatever information he deems desirable of aliens whose deportation has not been effected within six months," id., at 199, the constitutional doubt this interpretation would raise meant the language would be construed as limited to the provision of information "reasonably calculated to keep the Attorney General advised regarding the continued availability for departure of aliens whose deportation is overdue," id., at 202. In Witkovich the interpretation of the text was in aid of the statutory purpose; in the instant cases the interpretation nullifies the statutory purpose. Here the statute by its own terms permits the Attorney General to consider factors the Court now makes irrelevant. The majority's unanchored interpretation ignores another indication that the Attorney General's detention discretion was not limited to this truncated period. Section 1231(a)(6) permits continued detention not only of removable aliens but also of inadmissible aliens, for instance those stopped at the border before entry. Congress provides for detention of both categories within the same statutory grant of authority. Accepting the majority's interpretation, then, there are two possibilities, neither of which is sustainable. On the one hand, it may be that the majority's rule applies to both categories of aliens, in which case we are asked to assume that Congress intended to restrict the discretion it could confer upon the Attorney General so that all inadmissible aliens must be allowed into our community within six months. On the other hand, the majority's logic might be that inadmissible and removable aliens can be treated differently. Yet it is not a plausible construction of § 1231(a)(6) to imply a time limit as to one class but not to another. The text does not admit of this possibility. As a result, it is difficult to see why "[a]liens who have not yet gained initial admission 711 to this country would present a very different question." Ante, at 682. Congress' power to detain aliens in connection with removal or exclusion, the Court has said, is part of the Legislature's considerable authority over immigration matters. See, e. g., Wong Wing v. United States, 163 U. S. 228, 235 (1896) ("Proceedings to exclude or expel would be vain if those accused could not be held in custody pending the inquiry into their true character and while arrangements were being made for their deportation"). It is reasonable to assume, then, and it is the proper interpretation of the INA and § 1231(a)(6), that when Congress provided for detention "beyond the removal period," it exercised its considerable power over immigration and delegated to the Attorney General the discretion to detain inadmissible and other removable aliens for as long as they are determined to be either a flight risk or a danger to the Nation. The majority's interpretation, moreover, defeats the very repatriation goal in which it professes such interest. The Court rushes to substitute a judicial judgment for the Executive's discretion and authority. As the Government represents to us, judicial orders requiring release of removable aliens, even on a temporary basis, have the potential to undermine the obvious necessity that the Nation speak with one voice on immigration and foreign affairs matters. Brief for Respondents in No. 99-7791, p. 49. The result of the Court's rule is that, by refusing to accept repatriation of their own nationals, other countries can effect the release of these individuals back into the American community. Ibid. If their own nationals are now at large in the United States, the nation of origin may ignore or disclaim responsibility to accept their return. Ibid. The interference with sensitive foreign relations becomes even more acute where hostility or tension characterizes the relationship, for other countries can use the fact of judicially mandated release to their strategic advantage, refusing the return of their nationals 712 to force dangerous aliens upon us. One of the more alarming aspects of the Court's new venture into foreign affairs management is the suggestion that the district court can expand or contract the reasonable period of detention based on its own assessment of the course of negotiations with foreign powers. The Court says it will allow the Executive to perform its duties on its own for six months; after that, foreign relations go into judicially supervised receivership. The cases which the Court relies upon to support the imposition of presumptions are inapposite. The rule announced in Cheff v. Schnackenberg, 384 U. S. 373 (1966) "that sentences exceeding six months for criminal contempt may not be imposed by federal courts absent a jury trial" was based on the definition of a "petty offense" that was still operable in the United States Code, and was proper "under the peculiar power of the federal courts to revise sentences in contempt cases." Id., at 380. The majority can point to no similar statutory or judicial source for its authority to create its own time-based rule in these cases. It cites only an observation in a brief filed by the Government in United States v. Witkovich, O. T. 1956, No. 295, pp. 8-9, see ante, at 701, relying, in turn, on doubts expressed in a 1952 Senate Report concerning detention for longer than six months under an Act with standards different from, and far less precise than, those applicable here. In County of Riverside v. McLaughlin, 500 U. S. 44 (1991), our reasonableness presumption for delays of less than 48 hours between an arrest and a probable-cause hearing was, as the majority recognizes, ante, at 701, based on the "Court of Appeals' determination of the time required to complete those procedures." 500 U. S., at 57. Here, as far as we know, the 6-month period bears no particular relationship to how long it now takes to deport any group of aliens, or, for that matter, how long it took in the past to remove. Zadvydas' case itself demonstrates that the repatriation process may often take years to 713 negotiate, involving difficult issues of establishing citizenship and the like. See Brief for Petitioner in No. 99-7791, pp. 17-20. It is to be expected that from time to time a foreign power will adopt a truculent stance with respect to the United States and other nations. Yet the Court by its time limit, or presumptive time limit, goes far to undercut the position of the Executive in repatriation negotiations, thus ill serving the interest of all foreign nationals of the country concerned. Law-abiding aliens might wish to return to their home country, for instance, but the strained relationship caused by the difficult repatriation talks might prove to be a substantial obstacle for these aliens as well. In addition to weakening the hand of our Government, court ordered release cannot help but encourage dilatory and obstructive tactics by aliens who, emboldened by the Court's new rule, have good reason not to cooperate by making their own repatriation or transfer seem foreseeable. An alien ordered deported also has less incentive to cooperate or to facilitate expeditious removal when he has been released, even on a supervised basis, than does an alien held at an Immigration and Naturalization Service (INS) detention facility. Neither the alien nor his family would find any urgency in assisting with a petition to other countries to accept the alien back if the alien could simply remain in the United States indefinitely. The risk to the community posed by the mandatory release of aliens who are dangerous or a flight risk is far from insubstantial; the motivation to protect the citizenry from aliens determined to be dangerous is central to the immigration power itself. The Government cites statistical studies showing high recidivism rates for released aliens. One Government Accounting Office study cited by Congress in floor debates on the Antiterrorism and Effective Death Penalty Act of 1996, 110 Stat. 1214, put the figure as high as 77 percent. 142 Cong. Rec. 7972 (1996); Brief for Respondents in 714 No. 99-7791, at 27, n. 13. It seems evident a criminal record accumulated by an admitted alien during his or her time in the United States is likely to be a better indicator of risk than factors relied upon during the INS's initial decision to admit or exclude. Aliens ordered deported as the result of having committed a felony have proved to be dangerous. Any suggestion that aliens who have completed prison terms no longer present a danger simply does not accord with the reality that a significant risk may still exist, as determined by the many factors set forth in the regulations. See 8 CFR § 241.4(f) (2001). Underworld and terrorist links are subtle and may be overseas, beyond our jurisdiction to impose felony charges. Furthermore, the majority's rationale seems to apply to an alien who flees prosecution or escapes from custody in some other country. The fact an alien can be deemed inadmissible because of fraud at the time of entry does not necessarily distinguish his or her case from an alien whose entry was legal. Consider, for example, a fugitive alien who enters by fraud or stealth and resides here for five years with significant ties to the community, though still presenting a danger; contrast him with an alien who entered lawfully but a month later committed an act making him removable. Why the Court's rationale should apply to the second alien but not the first is not apparent. The majority cannot come to terms with these distinctions under its own rationale. The rule the majority creates permits consideration of nothing more than the reasonable foreseeability of removal. See ante, at 699-700. That standard is not only without sound basis in the statutory structure, but also is not susceptible to customary judicial inquiry. Cf. INS v. Aguirre-Aguirre, 526 U. S. 415, 425 (1999) ("The judiciary is not well positioned to shoulder primary responsibility for assessing the likelihood and importance of such diplomatic repercussions"). The majority does say that the release of terrorists or other "special circumstances" might justify "heightened deference to the judgments of the political 715 branches with respect to matters of national security." Ante, at 696. Here the Court appears to rely on an assessment of risk, but this is the very premise it finds inadequate to sustain the natural reading of the statute. The Court ought not to reject a rationale in order to deny power to the Attorney General and then invoke the same rationale to save its own analysis. This rule of startling breadth invites potentially perverse results. Because other nations may refuse to admit aliens who have committed certain crimessee, e. g., Brief for Petitioner in No. 99-7791, at 19 ("Lithuanian law precludes granting of citizenship to persons who, before coming to Lithuania, have been sentenced in another state to imprisonment for a deliberate crime for which criminal liability is imposed by the laws of the Republic of Lithuania" (citations and internal quotation marks omitted))often the aliens who have committed the most serious crimes will be those who may be released immediately under the majority's rule. An example is presented in the case of Saroeut Ourk, a Cambodian alien determined to be removable and held pending deportation. See Ourk v. INS, No. 00-35645 (CA9, Sept. 18, 2000), cert. pending, No. 00-987. Ourk was convicted of rape by use of drugs in conjunction with the kidnaping of a 13-year-old girl; after serving 18 months of his prison term, he was released on parole but was returned to custody twice more for parole violations. Pet. for Cert. in No. 00-987, pp. 4-5. When he was ordered deported and transferred to the custody of the INS, it is no surprise the INS determined he was both a flight risk and a danger to the community. Yet the Court of Appeals for the Ninth Circuit concluded, based on its earlier decision in Kim Ho Ma v. Reno, 208 F. 3d 815 (2000), that Ourk could no longer be held pending deportation, since removal to Cambodia was not reasonably foreseeable. App. to Pet. for Cert. in No. 00-987, pp. 3a4a. See also Phetsany v. INS, No. 00-16286 (CA9, Sept. 18, 2000), cert. pending, No. 00-986 (requiring release of a native and 716 citizen of Laos convicted of attempted, premeditated murder); Mounsaveng v. INS, No. 00-15309 (CA9, Aug. 11, 2000), cert. pending, No. 00-751[] (releasing a citizen of Laos convicted of rape of a 15-year-old girl and reckless endangerment for involvement in a fight in which gunshots were fired); Lim v. Reno, No. 99-36191 (CA9, Aug. 14, 2000), cert. pending, No. 00-777 (releasing a Cambodian convicted of rape and robbery); Phuong Phuc Le v. INS, No. 00-16095 (CA9, Sept. 18, 2000), cert. pending, No. 00-1001 (releasing a Vietnamese citizen convicted of voluntary manslaughter in a crime involving the attempted murder of two other persons). Today's result will ensure these dangerous individuals, and hundreds more like them, will remain free while the Executive Branch tries to secure their removal. By contrast, aliens who violate mere tourist visa requirements, ante, at 691, can in the typical case be held pending deportation on grounds that a minor offender is more likely to be removed. There is no reason to suppose Congress intended this odd result. The majority's rule is not limited to aliens once lawfully admitted. Today's result may well mandate the release of those aliens who first gained entry illegally or by fraud, and, indeed, is broad enough to require even that inadmissible and excludable aliens detained at the border be set free in our community. In Rosales-Garcia v. Holland, 238 F. 3d 704, 725 (CA6 2001), for example, Rosales, a Cuban citizen, arrived in this country during the 1980 Mariel boatlift. Id., at 707. Upon arrival in the United States, Rosales was released into the custody of a relative under the Attorney General's authority to parole illegal aliens, see 8 U. S. C. § 1182(d)(5)(A), and there he committed multiple crimes for which he was convicted and imprisoned. 238 F. 3d, at 707 708. While serving a sentence for burglary and grand larceny, Rosales escaped from prison, another of the offenses 717 for which he ultimately served time. Id., at 708. The INS eventually revoked Rosales' immigration parole, ordered him deported, and held him pending deportation, subject to periodic consideration for parole under the Cuban Review Plan. See 8 CFR § 212.12(g)(2) (2001). In reasoning remarkably similar to the majority's, the Court of Appeals for the Sixth Circuit held that the indefinite detention of Rosales violated Fifth Amendment due process rights, because "the government has offered . . . no credible proof that there is any possibility that Cuba may accept Rosales's return anytime in the foreseeable future." 238 F. 3d, at 725. This resultthat Mariel Cubans and other illegal, inadmissible aliens will be released notwithstanding their criminal history and obvious flight riskwould seem a necessary consequence of the majority's construction of the statute. The majority's confidence that the Judiciary will handle these matters "with appropriate sensitivity," ante, at 696, 700, allows no meaningful category to confine or explain its own sweeping rule, provides no justification for wresting this sovereign power away from the political branches in the first place, and has no support in judicially manageable standards for deciding the foreseeability of removal. It is curious that the majority would approve of continued detention beyond the 90-day period, or, for that matter, during the 90-day period, where deportation is not reasonably foreseeable. If the INS cannot detain an alien because he is dangerous, it would seem irrelevant to the Constitution or to the majority's presumption that the INS has detained the alien for only a little while. The reason detention is permitted at all is that a removable alien does not have the same liberty interest as a citizen does. The Court cannot bring itself to acknowledge this established proposition. Likewise, it is far from evident under the majority's theory why the INS can condition and supervise the release of aliens who are not removable in the reasonably foreseeable future, or why "the alien may no doubt be returned to custody upon 718 a violation of those conditions." Ante, at 700. It is true that threat of revocation of supervised release is necessary to make the supervised release itself effective, a fact even counsel for Zadvydas acknowledged. Brief for Petitioner in No. 99-7791, at 20-21. If that is so, however, the whole foundation for the Court's position collapses. The Court today assumes a role in foreign relations which is unprecedented, unfortunate, and unwise. Its misstep results in part from a misunderstanding of the liberty interests these aliens retain, an issue next to be discussed. II The aliens' claims are substantial; their plight is real. They face continued detention, perhaps for life, unless it is shown they no longer present a flight risk or a danger to the community. In a later case the specific circumstances of a detention may present a substantial constitutional question. That is not a reason, however, for framing a rule which ignores the law governing alien status. As persons within our jurisdiction, the aliens are entitled to the protection of the Due Process Clause. Liberty under the Due Process Clause includes protection against unlawful or arbitrary personal restraint or detention. The liberty rights of the aliens before us here are subject to limitations and conditions not applicable to citizens, however. See, e. g., Mathews v. Diaz, 426 U. S. 67, 79-80 (1976) ("In the exercise of its broad power over naturalization and immigration, Congress regularly makes rules that would be unacceptable if applied to citizens"). No party to this proceeding contests the initial premise that the aliens have been determined to be removable after a fair hearing under lawful and proper procedures. Section 1229a sets forth the proceedings required for deciding the inadmissibility or removability of an alien, including a hearing before an immigration judge, at which the INS carries "the burden of establishing by clear and convincing evidence that . . . the alien is deportable." 8 719 U. S. C. § 1229a(c)(3)(A); see also Berenyi v. District Director, INS, 385 U. S. 630, 636 (1967) ("When the Government seeks to . . . deport a resident alien and send him from our shores, it carries the heavy burden of proving its case by clear, unequivocal, and convincing evidence" (internal quotation marks and footnotes omitted)). Aliens ordered removed pursuant to these procedures are given notice of their right to appeal the decision, 8 U. S. C. § 1229a(c)(4), may move the immigration judge to reconsider, § 1229a(c)(5), can seek discretionary cancellation of removal, § 1229b, and can obtain habeas review of the Attorney General's decision not to consider waiver of deportation. See INS v. St. Cyr, ante, at 314. As a result, aliens like Zadvydas and Ma do not arrive at their removable status without thorough, substantial procedural safeguards. The majority likely is correct to say that the distinction between an alien who entered the United States, as these aliens did, and one who has not, "runs throughout immigration law." Ante, at 693. The distinction is not so clear as it might seem, however, and I doubt it will suffice to confine the rationale adopted by the majority. The case which often comes to mind when one tests the distinction is Shaughnessy v. United States ex rel. Mezei, 345 U. S. 206 (1953), where the Court considered the situation of an alien denied entry and detained on Ellis Island. The detention had no foreseeable end, for though Mezei was inadmissible to the United States it seemed no other country would have him. Id., at 209. The case presented a line-drawing problem, asking whether the alien was in our country; or whether his situation was the same as if he were still on foreign shores; or whether he fell in a legal category somewhere in between, though if this were true, it still would not be clear how to resolve the case. The Court held the alien had no right to a hearing to secure his release. Id., at 212-213. (Approximately 17 months after this Court denied Mezei relief, the Attorney General released him on parole. It appears Mezei 720 never returned to INS custody, though he was not admitted to the United States as a citizen or lawful permanent resident. See Weisselberg, The Exclusion and Detention of Aliens: Lessons From the Lives of Ellen Knauff and Ignatz Mezei, 143 U. Pa. L. Rev. 933, 979-984 (1995).) Here the majority says the earlier presence of these aliens in the United States distinguishes the cases from Mezei. For reasons given here it is submitted the majority is incorrect in its major conclusions in all events, so even if it were assumed these aliens are in a class with more rights than Mezei, it makes no difference. For purposes of this dissent it is not necessary to rely upon Mezei. That said, it must be made clear these aliens are in a position far different from aliens with a lawful right to remain here. They are removable, and their rights must be defined in accordance with that status. The due process analysis must begin with a "careful description of the asserted right." Reno v. Flores, 507 U. S. 292, 302 (1993). We have "long held that an alien seeking initial admission to the United States requests a privilege and has no constitutional rights regarding his application, for the power to admit or exclude aliens is a sovereign prerogative." Landon v. Plasencia, 459 U. S. 21, 32 (1982). The same is true for those aliens like Zadvydas and Ma, who face a final order of removal. When an alien is removable, he or she has no right under the basic immigration laws to remain in this country. The removal orders reflect the determination that the aliens' ties to this community are insufficient to justify their continued presence in the United States. An alien's admission to this country is conditioned upon compliance with our laws, and removal is the consequence of a breach of that understanding. It is true the Court has accorded more procedural protections to those aliens admitted to the country than those stopped at the border, observing that "a continuously present alien is entitled to a fair hearing when threatened with 721 deportation." Ibid.; Mezei, supra, at 212 ("[A]liens who have once passed through our gates, even illegally, may be expelled only after proceedings conforming to traditional standards of fairness encompassed in due process of law. . . . But an alien on the threshold of initial entry stands on a different footing: `Whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned' " (quoting United States ex rel. Knauff v. Shaughnessy, 338 U. S. 537, 544 (1950))). Removable and excludable aliens are situated differently before an order of removal is entered; the removable alien, by virtue of his continued presence here, possesses an interest in remaining, while the excludable alien seeks only the privilege of entry. Still, both removable and inadmissible aliens are entitled to be free from detention that is arbitrary or capricious. Where detention is incident to removal, the detention cannot be justified as punishment nor can the confinement or its conditions be designed in order to punish. See Wong Wing v. United States, 163 U. S. 228 (1896). This accords with international views on detention of refugees and asylum seekers. See Report of the United Nations Working Group on Arbitrary Detention, U. N. Doc. E/CN.4/2000/4 (Dec. 28, 1999); United Nations High Commissioner for Refugees, Guidelines on Applicable Criteria and Standards Relating to the Detention on Asylum-Seekers (Feb. 10, 1999). It is neither arbitrary nor capricious to detain the aliens when necessary to avoid the risk of flight or danger to the community. Whether a due process right is denied when removable aliens who are flight risks or dangers to the community are detained turns, then, not on the substantive right to be free, but on whether there are adequate procedures to review their cases, allowing persons once subject to detention to show that through rehabilitation, new appreciation of their responsibilities, or under other standards, they no longer present special risks or danger if put at large. The procedures 722 to determine and to review the status-required detention go far toward this objective. By regulations, promulgated after notice and comment, the Attorney General has given structure to the discretion delegated by the INA in order to ensure fairness and regularity in INS detention decisions. First, the INS provides for an initial post custody review, before the expiration of the 90-day removal period, at which a district director conducts a record review. 8 CFR § 241.4 (2001). The alien is entitled to present any relevant information in support of release, and the district director has the discretion to interview the alien for a personal evaluation. § 241.4(h)(1). At the end of the 90-day period, the alien, if held in custody, is transferred to a post order detention unit at INS headquarters, which in the ordinary course will conduct an initial custody review within three months of the transfer. § 241.4(k)(2)(ii). If the INS determines the alien should remain in detention, a twomember panel of INS officers interviews the alien and makes a recommendation to INS headquarters. §§ 241.4(i)(1)(3). The regulations provide an extensive, nonexhaustive list of factors that should be considered in the recommendation to release or further detain. Those include: "[t]he nature and number of disciplinary infractions"; "the detainee's criminal conduct and criminal convictions, including consideration of the nature and severity of the alien's convictions, sentences imposed and time actually served, probation and criminal parole history, evidence of recidivism, and other criminal history"; "psychiatric and psychological reports pertaining to the detainee's mental health"; "[e]vidence of rehabilitation"; "[f]avorable factors, including ties to the United States such as the number of close relatives"; "[p]rior immigration violations and history"; "[t]he likelihood that the alien is a significant flight risk or may abscond to avoid removal, including history of escapes"; and any other probative information. § 241.4(f). Another review must occur within one year, with mandatory evaluations each year thereafter; if the alien requests, 723 the INS has the discretion to grant more frequent reviews. § 241.4(k)(2)(iii). The INS must provide the alien 30-days advance, written notice of custody reviews; and it must afford the alien an opportunity to submit any relevant materials for consideration. § 241.4(i)(3)(ii). The alien may be assisted by a representative of his choice during the review, §§ 241.4(i)(3)(i), (ii), and the INS must provide the alien with a copy of its decision, including a brief statement of the reasons for any continued detention, § 241.4(d). In this context the proper analysis can be informed by our cases involving parole-eligibility or parole-revocation determinations. In Morrissey v. Brewer, 408 U. S. 471 (1972), for example, we held some amount of process was due an individual whose parole was revoked, for "the liberty of a parolee, although indeterminate, includes many of the core values of unqualified liberty." Id., at 482; see also Board of Pardons v. Allen, 482 U. S. 369 (1987). We rejected in Morrissey the suggestion that the State could justify parole revocation "without some informal procedural guarantees," 408 U. S., at 483, but "[g]iven the previous conviction and the proper imposition of conditions," we recognized that "the State has an overwhelming interest in being able to return the individual to imprisonment without the burden of a new adversary criminal trial," ibid. We held the review process need not include a judicial officer or formal court proceeding, but could be conducted by a neutral administrative official. Id., at 486. While the majority expresses some concern that the regulations place the burden on the alien to show he is no longer dangerous, that question could be adjudicated in a later case raising the issue. It should be noted the procedural protection here is real, not illusory; and the criteria for obtaining release are far from insurmountable. Statistics show that between February 1999 and mid-November 2000 some 6,200 aliens were provided custody reviews before expiration of the 90-day removal period, and of those aliens about 3,380 724 were released. 65 Fed. Reg. 80285 (2000); Reply Brief for Petitioners in No. 00-38, p. 15. As a result, although the alien carries the burden to prove detention is no longer justified, there is no showing this is an unreasonable burden. Like the parolee in Morrissey, who was aware of the conditions of his release, the aliens in the instant cases have notice, constructive or actual, that the INA imposes as a consequence of the commission of certain crimes not only deportation but also the possibility of continued detention in cases where deportation is not immediately feasible. And like the prisoner in Board of Pardons v. Allen, who sought federalcourt review of the discretionary decision denying him parole eligibility, removable aliens held pending deportation have a due process liberty right to have the INS conduct the review procedures in place. See 482 U. S., at 381. Were the INS, in an arbitrary or categorical manner, to deny an alien access to the administrative processes in place to review continued detention, habeas jurisdiction would lie to redress the due process violation caused by the denial of the mandated procedures under 8 CFR § 241.4 (2001). This is not the posture of the instant cases, however. Neither Zadvydas nor Ma argues that the Attorney General has applied the procedures in an improper manner; they challenge only the Attorney General's authority to detain at all where removal is no longer foreseeable. The Government has conceded that habeas jurisdiction is available under 28 U. S. C. § 2241 to review an alien's challenge to detention following entry of a final order of deportation, Brief for Respondents in No. 99-7791, at 9-10, n. 7; Tr. of Oral Arg. 59, although it does not detail what the nature of the habeas review would be. As a result, we need not decide today whether, and to what extent, a habeas court could review the Attorney General's determination that a detained alien continues to be dangerous or a flight risk. Given the undeniable deprivation of liberty caused by the detention, there might be substantial questions concerning the severity necessary 725 for there to be a community risk; the adequacy of judicial review in specific cases where it is alleged there is no justification for concluding an alien is dangerous or a flight risk; and other issues. These matters are not presented to us here. In all events, if judicial review is to be available, the inquiry required by the majority focuses on the wrong factors. Concepts of flight risk or future dangerousness are manageable legal categories. See, e. g., Kansas v. Hendricks, 521 U. S. 346 (1997); Foucha v. Louisiana, 504 U. S. 71 (1992). The majority instead would have the Judiciary review the status of repatriation negotiations, which, one would have thought, are the paradigmatic examples of nonjusticiable inquiry. See INS v. Aguirre-Aguirre, 526 U. S., at 425. The inquiry would require the Executive Branch to surrender its primacy in foreign affairs and submit reports to the courts respecting its ongoing negotiations in the international sphere. High officials of the Department of State could be called on to testify as to the status of these negotiations. The Court finds this to be a more manageable, more appropriate role for the Judiciary than to review a single, discrete case deciding whether there were fair procedures and adequate judicial safeguards to determine whether an alien is dangerous to the community so that long-term detention is justified. The Court's rule is a serious misconception of the proper judicial function, and it is not what Congress enacted. For these reasons, the Court should reverse the judgment of the Court of Appeals for the Ninth Circuit and affirm the judgment of the Court of Appeals for the Fifth Circuit. I dissent.	The Court says its duty is to avoid a constitutional question. It deems the duty performed by interpreting a statute in obvious disregard of congressional intent; curing the resulting gap by writing a statutory amendment of its own; committing its own grave constitutional error by arrogating to the Judicial Branch the power to summon high officers of the Executive to assess their progress in conducting some of the Nation's most sensitive negotiations with foreign powers; and then likely releasing into our general population at least hundreds of removable or inadmissible aliens who have been found by fair procedures to be flight risks, dangers to the community, or both. Far from avoiding a constitutional question, the Court's ruling causes systemic dislocation in the balance of powers, thus raising serious constitutional concerns not just for the cases at hand but for the Court's own view of its proper authority. Any supposed respect the Court seeks in not reaching the constitutional question is outweighed by the intrusive and erroneous exercise of its own powers. In the guise of judicial restraint the Court ought not to intrude upon the other branches. The constitutional question the statute presents, it must be acknowledged, 706 may be a significant one in some later case; but it ought not to drive us to an incorrect interpretation of the statute. The Court having reached the wrong result for the wrong reason, this respectful dissent is required. I The Immigration and Nationality Act (INA), et seq. (1994 ed. and Supp. V), is straightforward enough. It provides: "An alien ordered removed who is inadmissible under section 1182 of this title, removable under section 1227(a)(1)(C), 1227(a)(2), or 1227(a)(4) of this title or who has been determined by the Attorney General to be a risk to the community or unlikely to comply with the order of removal, may be detained beyond the removal period and, if released, shall be subject to the terms of supervision in paragraph (3)." (a)(6) (1994 ed., Supp. V). By this statute, Congress confers upon the Attorney General discretion to detain an alien ordered removed. It gives express authorization to detain "beyond the removal period." The class of removed aliens detainable under the section includes aliens who were inadmissible and aliens subject to final orders of removal, provided they are a risk to the community or likely to flee. The issue to be determined is whether the authorization to detain beyond the removal period is subject to the implied, nontextual limitation that the detention be no longer than reasonably necessary to effect removal to another country. The majority invokes the canon of constitutional doubt to read that implied term into the statute. One can accept the premise that a substantial constitutional question is presented by the prospect of lengthy, even unending, detention in some instances; but the statutory construction the Court adopts should be rejected in any event. The interpretation has no basis in the language 707 or structure of the INA and in fact contradicts and defeats the purpose set forth in the express terms of the statutory text. The Court, it is submitted, misunderstands the principle of constitutional avoidance which it seeks to invoke. The majority gives a brief bow to the rule that courts must respect the intention of Congress, ante, at 696, but then waltzes away from any analysis of the language, structure, or purpose of the statute. Its analysis is not consistent with our precedents explaining the limits of the constitutional doubt rule. The rule allows courts to choose among constructions which are "fairly possible," not to "`press statutory construction to the point of disingenuous evasion even to avoid a constitutional question,' " Were a court to find two interpretations of equal plausibility, it should choose the construction that avoids confronting a constitutional question. The majority's reading of the statutory authorization to "detai[n] beyond the removal period," however, is not plausible. An interpretation which defeats the stated congressional purpose does not suffice to invoke the constitutional doubt rule, for it is "plainly contrary to the intent of Congress." United The majority announces it will reject the Government's argument "that the statute means what it literally says," ante, at 689, but then declines to offer any other acceptable textual interpretation. The majority does not demonstrate an ambiguity in the delegation of the detention power to the Attorney General. It simply amends the statute to impose a time limit tied to the progress of negotiations to effect the aliens' removal. The statute cannot be so construed. The requirement the majority reads into the law simply bears no relation to the text; and in fact it defeats the statutory purpose and design. 708 Other provisions in 1231 itself do link the requirement of a reasonable time period to the removal process. See, e. g., 1231(c)(1)(A) (providing that an alien who arrives at a port of entry "shall be removed immediately on a vessel or aircraft" unless "it is impracticable" to do so "within a reasonable time" (emphasis added)); 1231(c)(3)(A)(ii)(II) (requiring the "owner of a vessel or aircraft bringing an alien to the United States [to] pay the costs of detaining and maintaining the alien for the period of time reasonably necessary for the owner to arrange for repatriation" (emphasis added)). That Congress chose to impose the limitation in these sections and not in 1231(a)(6) is evidence of its intent to measure the detention period by other standards. When Congress has made express provisions for the contingency that repatriation might be difficult or prolonged in other portions of the statute, it should be presumed that its omission of the same contingency in the detention section was purposeful. Indeed, the reasonable time limits in the provisions just mentioned simply excuse the duty of early removal. They do not mandate release. An alien within one of these categories, say, a ship stowaway, would be subject as well to detention beyond the removal period under 1231(a)(6), if the statute is read as written. Under the majority's view, however, it appears the alien must be released in six months even if presenting a real danger to the community. The 6-month period invented by the Court, even when modified by its sliding standard of reasonableness for certain repatriation negotiations, see ante, at 701, makes the statutory purpose to protect the community ineffective. The risk to the community exists whether or not the repatriation negotiations have some end in sight; in fact, when the negotiations end, the risk may be greater. The authority to detain beyond the removal period is to protect the community, not to negotiate the aliens' return. The risk to the community survives repatriation negotiations. To a more limited, but still significant, extent, so does the concern with flight. It 709 is a fact of international diplomacy that governments and their policies change; and if repatriation efforts can be revived, the Attorney General has an interest in ensuring the alien can report so the removal process can begin again. Congress, moreover, was well aware of the difficulties confronting aliens who are removable but who cannot be repatriated. It made special provisions allowing them to be employed, a privilege denied to other deportable aliens. See 1231(a)(7) (providing an "alien [who] cannot be removed due to the refusal of all countries designated by the alien or under this section to receive the alien" still remains eligible for employment in the United States). Congress' decision to ameliorate the condition of aliens subject to a final order of removal who cannot be repatriated, but who need not be detained, illustrates a balance in the statutory design. Yet the Court renders the other side of the balance meaningless. The risk to the community posed by a removable alien is a function of a variety of circumstances, circumstances that do not diminish just because the alien cannot be deported within some foreseeable time. Those circumstances include the seriousness of the alien's past offenses, his or her efforts at rehabilitation, and some indication from the alien that, given the real prospect of detention, the alien will conform his or her conduct. This is the purpose for the periodic review of detention status provided for by the regulations. See 8 CFR 241.4 The Court's amendment of the statute reads out of the provision the congressional decision that dangerousness alone is a sufficient basis for detention, see ante, at 699 (citing 1 E. Coke, Institutes 70b), and reads out as well any meaningful structure for supervised release. The majority is correct to observe that in United the Court "read significant limitations into" a statute, ante, at 689, but that does not permit us to avoid the proper reading of the enactment now before us. In Witkovich, the Court construed former 1252(d), which required an alien under a final order of deportation 710 "to give information under oath as the Attorney General may deem fit and proper." The Court held that although the plain language "appears to confer upon the Attorney General unbounded authority to require whatever information he deems desirable of aliens whose deportation has not been effected within six months," the constitutional doubt this interpretation would raise meant the language would be construed as limited to the provision of information "reasonably calculated to keep the Attorney General advised regarding the continued availability for departure of aliens whose deportation is overdue," In Witkovich the interpretation of the text was in aid of the statutory purpose; in the instant cases the interpretation nullifies the statutory purpose. Here the statute by its own terms permits the Attorney General to consider factors the Court now makes irrelevant. The majority's unanchored interpretation ignores another indication that the Attorney General's detention discretion was not limited to this truncated period. Section 1231(a)(6) permits continued detention not only of removable aliens but also of inadmissible aliens, for instance those stopped at the border before entry. Congress provides for detention of both categories within the same statutory grant of authority. Accepting the majority's interpretation, then, there are two possibilities, neither of which is sustainable. On the one hand, it may be that the majority's rule applies to both categories of aliens, in which case we are asked to assume that Congress intended to restrict the discretion it could confer upon the Attorney General so that all inadmissible aliens must be allowed into our community within six months. On the other hand, the majority's logic might be that inadmissible and removable aliens can be treated differently. Yet it is not a plausible construction of 1231(a)(6) to imply a time limit as to one class but not to another. The text does not admit of this possibility. As a result, it is difficult to see why "[a]liens who have not yet gained initial admission 711 to this country would present a very different question." Ante, at 682. Congress' power to detain aliens in connection with removal or exclusion, the Court has said, is part of the Legislature's considerable authority over immigration matters. See, e. g., Wong It is reasonable to assume, then, and it is the proper interpretation of the INA and 1231(a)(6), that when Congress provided for detention "beyond the removal period," it exercised its considerable power over immigration and delegated to the Attorney General the discretion to detain inadmissible and other removable aliens for as long as they are determined to be either a flight risk or a danger to the Nation. The majority's interpretation, moreover, defeats the very repatriation goal in which it professes such interest. The Court rushes to substitute a judicial judgment for the Executive's discretion and authority. As the Government represents to us, judicial orders requiring release of removable aliens, even on a temporary basis, have the potential to undermine the obvious necessity that the Nation speak with one voice on immigration and foreign affairs matters. Brief for Respondents in No. 99-7791, p. 49. The result of the Court's rule is that, by refusing to accept repatriation of their own nationals, other countries can effect the release of these individuals back into the American community. If their own nationals are now at large in the United States, the nation of origin may ignore or disclaim responsibility to accept their return. The interference with sensitive foreign relations becomes even more acute where hostility or tension characterizes the relationship, for other countries can use the fact of judicially mandated release to their strategic advantage, refusing the return of their nationals 712 to force dangerous aliens upon us. One of the more alarming aspects of the Court's new venture into foreign affairs management is the suggestion that the district court can expand or contract the reasonable period of detention based on its own assessment of the course of negotiations with foreign powers. The Court says it will allow the Executive to perform its duties on its own for six months; after that, foreign relations go into judicially supervised receivership. The cases which the Court relies upon to support the imposition of presumptions are inapposite. The rule announced in "that sentences exceeding six months for criminal contempt may not be imposed by federal courts absent a jury trial" was based on the definition of a "petty offense" that was still operable in the United States Code, and was proper "under the peculiar power of the federal courts to revise sentences in contempt cases." The majority can point to no similar statutory or judicial source for its authority to create its own time-based rule in these cases. It cites only an observation in a brief filed by the Government in United O. T. 1956, No. 295, pp. 8-9, see ante, at 701, relying, in turn, on doubts expressed in a 1952 Senate Report concerning detention for longer than six months under an Act with standards different from, and far less precise than, those applicable here. In County of our reasonableness presumption for delays of less than 48 hours between an arrest and a probable-cause hearing was, as the majority recognizes, ante, at 701, based on the "Court of Appeals' determination of the time required to complete those procedures." Here, as far as we know, the 6-month period bears no particular relationship to how long it now takes to deport any group of aliens, or, for that matter, how long it took in the past to remove. Zadvydas' case itself demonstrates that the repatriation process may often take years to 713 negotiate, involving difficult issues of establishing citizenship and the like. See Brief for Petitioner in No. 99-7791, pp. 17-20. It is to be expected that from time to time a foreign power will adopt a truculent stance with respect to the United States and other nations. Yet the Court by its time limit, or presumptive time limit, goes far to undercut the position of the Executive in repatriation negotiations, thus ill serving the interest of all foreign nationals of the country concerned. Law-abiding aliens might wish to return to their home country, for instance, but the strained relationship caused by the difficult repatriation talks might prove to be a substantial obstacle for these aliens as well. In addition to weakening the hand of our Government, court ordered release cannot help but encourage dilatory and obstructive tactics by aliens who, emboldened by the Court's new rule, have good reason not to cooperate by making their own repatriation or transfer seem foreseeable. An alien ordered deported also has less incentive to cooperate or to facilitate expeditious removal when he has been released, even on a supervised basis, than does an alien held at an Immigration and Naturalization Service (INS) detention facility. Neither the alien nor his family would find any urgency in assisting with a petition to other countries to accept the alien back if the alien could simply remain in the United States indefinitely. The risk to the community posed by the mandatory release of aliens who are dangerous or a flight risk is far from insubstantial; the motivation to protect the citizenry from aliens determined to be dangerous is central to the immigration power itself. The Government cites statistical studies showing high recidivism rates for released aliens. One Government Accounting Office study cited by Congress in floor debates on the Antiterrorism and Effective Death Penalty Act of 1996, put the figure as high as 77 percent. 142 Cong. Rec. 7972 ; Brief for Respondents in 714 No. 99-7791, at 27, n. 13. It seems evident a criminal record accumulated by an admitted alien during his or her time in the United States is likely to be a better indicator of risk than factors relied upon during the INS's initial decision to admit or exclude. Aliens ordered deported as the result of having committed a felony have proved to be dangerous. Any suggestion that aliens who have completed prison terms no longer present a danger simply does not accord with the reality that a significant risk may still exist, as determined by the many factors set forth in the regulations. See 8 CFR 241.4(f) Underworld and terrorist links are subtle and may be overseas, beyond our jurisdiction to impose felony charges. Furthermore, the majority's rationale seems to apply to an alien who flees prosecution or escapes from custody in some other country. The fact an alien can be deemed inadmissible because of fraud at the time of entry does not necessarily distinguish his or her case from an alien whose entry was legal. Consider, for example, a fugitive alien who enters by fraud or stealth and resides here for five years with significant ties to the community, though still presenting a danger; contrast him with an alien who entered lawfully but a month later committed an act making him removable. Why the Court's rationale should apply to the second alien but not the first is not apparent. The majority cannot come to terms with these distinctions under its own rationale. The rule the majority creates permits consideration of nothing more than the reasonable foreseeability of removal. See ante, at 699-700. That standard is not only without sound basis in the statutory structure, but also is not susceptible to customary judicial inquiry. Cf. The majority does say that the release of terrorists or other "special circumstances" might justify "heightened deference to the judgments of the political 715 branches with respect to matters of national security." Ante, at 696. Here the Court appears to rely on an assessment of risk, but this is the very premise it finds inadequate to sustain the natural reading of the statute. The Court ought not to reject a rationale in order to deny power to the Attorney General and then invoke the same rationale to save its own analysis. This rule of startling breadth invites potentially perverse results. Because other nations may refuse to admit aliens who have committed certain crimessee, e. g., Brief for Petitioner in No. 99-7791, at 19 ("Lithuanian law precludes granting of citizenship to persons who, before coming to Lithuania, have been sentenced in another state to imprisonment for a deliberate crime for which criminal liability is imposed by the laws of the Republic of Lithuania" (citations and internal quotation marks omitted))often the aliens who have committed the most serious crimes will be those who may be released immediately under the majority's rule. An example is presented in the case of Saroeut Ourk, a Cambodian alien determined to be removable and held pending deportation. See Ourk v. INS, No. 00-35645 cert. pending, No. 00-987. Ourk was convicted of rape by use of drugs in conjunction with the kidnaping of a 13-year-old girl; after serving 18 months of his prison term, he was released on parole but was returned to custody twice more for parole violations. Pet. for Cert. in No. 00-987, pp. 4-5. When he was ordered deported and transferred to the custody of the INS, it is no surprise the INS determined he was both a flight risk and a danger to the community. Yet the Court of Appeals for the Ninth Circuit concluded, based on its earlier decision in Kim Ho that Ourk could no longer be held pending deportation, since removal to Cambodia was not reasonably foreseeable. App. to Pet. for Cert. in No. 00-987, pp. 3a4a. See also Phetsany v. INS, No. 00-186 cert. pending, No. 00-986 (requiring release of a native and 716 citizen of Laos convicted of attempted, premeditated murder); Mounsaveng v. INS, No. 00-15309 cert. pending, No. 00-751[] (releasing a citizen of Laos convicted of rape of a 15-year-old girl and reckless endangerment for involvement in a fight in which gunshots were fired); Lim v. Reno, No. 99-36191 cert. pending, No. 00-777 (releasing a Cambodian convicted of rape and robbery); Phuong Phuc Le v. INS, No. 00-195 cert. pending, No. 00-1001 (releasing a Vietnamese citizen convicted of voluntary manslaughter in a crime involving the attempted murder of two other persons). Today's result will ensure these dangerous individuals, and hundreds more like them, will remain free while the Executive Branch tries to secure their removal. By contrast, aliens who violate mere tourist visa requirements, ante, at 691, can in the typical case be held pending deportation on grounds that a minor offender is more likely to be removed. There is no reason to suppose Congress intended this odd result. The majority's rule is not limited to aliens once lawfully admitted. Today's result may well mandate the release of those aliens who first gained entry illegally or by fraud, and, indeed, is broad enough to require even that inadmissible and excludable aliens detained at the border be set free in our community. In for example, Rosales, a Cuban citizen, arrived in this country during the 1980 Mariel boatlift. Upon arrival in the United States, Rosales was released into the custody of a relative under the Attorney General's authority to parole illegal aliens, see 8 U. S. C. 1182(d)(5)(A), and there he committed multiple crimes for which he was convicted and 238 F. 3d, 708. While serving a sentence for burglary and grand larceny, Rosales escaped from prison, another of the offenses 717 for which he ultimately served time. The INS eventually revoked Rosales' immigration parole, ordered him deported, and held him pending deportation, subject to periodic consideration for parole under the Cuban Review Plan. See 8 CFR 212.12(g)(2) In reasoning remarkably similar to the majority's, the Court of Appeals for the Sixth Circuit held that the indefinite detention of Rosales violated Fifth Amendment due process rights, because "the government has offered no credible proof that there is any possibility that Cuba may accept Rosales's return anytime in the foreseeable future." 238 F. 3d, at This resultthat Mariel Cubans and other illegal, inadmissible aliens will be released notwithstanding their criminal history and obvious flight riskwould seem a necessary consequence of the majority's construction of the statute. The majority's confidence that the Judiciary will handle these matters "with appropriate sensitivity," ante, at 696, 700, allows no meaningful category to confine or explain its own sweeping rule, provides no justification for wresting this sovereign power away from the political branches in the first place, and has no support in judicially manageable standards for deciding the foreseeability of removal. It is curious that the majority would approve of continued detention beyond the 90-day period, or, for that matter, during the 90-day period, where deportation is not reasonably foreseeable. If the INS cannot detain an alien because he is dangerous, it would seem irrelevant to the Constitution or to the majority's presumption that the INS has detained the alien for only a little while. The reason detention is permitted at all is that a removable alien does not have the same liberty interest as a citizen does. The Court cannot bring itself to acknowledge this established proposition. Likewise, it is far from evident under the majority's theory why the INS can condition and supervise the release of aliens who are not removable in the reasonably foreseeable future, or why "the alien may no doubt be returned to custody upon 718 a violation of those conditions." Ante, at 700. It is true that threat of revocation of supervised release is necessary to make the supervised release itself effective, a fact even counsel for Zadvydas acknowledged. Brief for Petitioner in No. 99-7791, at 20-21. If that is so, however, the whole foundation for the Court's position collapses. The Court today assumes a role in foreign relations which is unprecedented, unfortunate, and unwise. Its misstep results in part from a misunderstanding of the liberty interests these aliens retain, an issue next to be discussed. II The aliens' claims are substantial; their plight is real. They face continued detention, perhaps for life, unless it is shown they no longer present a flight risk or a danger to the community. In a later case the specific circumstances of a detention may present a substantial constitutional question. That is not a reason, however, for framing a rule which ignores the law governing alien status. As persons within our jurisdiction, the aliens are entitled to the protection of the Due Process Clause. Liberty under the Due Process Clause includes protection against unlawful or arbitrary personal restraint or detention. The liberty rights of the aliens before us here are subject to limitations and conditions not applicable to citizens, however. See, e. g., No party to this proceeding contests the initial premise that the aliens have been determined to be removable after a fair hearing under lawful and proper procedures. Section 1229a sets forth the proceedings required for deciding the inadmissibility or removability of an alien, including a hearing before an immigration judge, at which the INS carries "the burden of establishing by clear and convincing evidence that the alien is deportable." 8 719 U. S. C. 1229a(c)(3)(A); see also Aliens ordered removed pursuant to these procedures are given notice of their right to appeal the decision, 8 U. S. C. 1229a(c)(4), may move the immigration judge to reconsider, 1229a(c)(5), can seek discretionary cancellation of removal, 1229b, and can obtain habeas review of the Attorney General's decision not to consider waiver of deportation. See INS v. St. Cyr, ante, at 314. As a result, aliens like Zadvydas and Ma do not arrive at their removable status without thorough, substantial procedural safeguards. The majority likely is correct to say that the distinction between an alien who entered the United States, as these aliens did, and one who has not, "runs throughout immigration law." Ante, at 693. The distinction is not so clear as it might seem, however, and I doubt it will suffice to confine the rationale adopted by the majority. The case which often comes to mind when one tests the distinction is where the Court considered the situation of an alien denied entry and detained on Ellis Island. The detention had no foreseeable end, for though was inadmissible to the United States it seemed no other country would have him. The case presented a line-drawing problem, asking whether the alien was in our country; or whether his situation was the same as if he were still on foreign shores; or whether he fell in a legal category somewhere in between, though if this were true, it still would not be clear how to resolve the case. The Court held the alien had no right to a hearing to secure his release.) Here the majority says the earlier presence of these aliens in the United States distinguishes the cases from For reasons given here it is submitted the majority is incorrect in its major conclusions in all events, so even if it were assumed these aliens are in a class with more rights than it makes no difference. For purposes of this dissent it is not necessary to rely upon That said, it must be made clear these aliens are in a position far different from aliens with a lawful right to remain here. They are removable, and their rights must be defined in accordance with that status. The due process analysis must begin with a "careful description of the asserted right." We have "long held that an alien seeking initial admission to the United States requests a privilege and has no constitutional rights regarding his application, for the power to admit or exclude aliens is a sovereign prerogative." The same is true for those aliens like Zadvydas and Ma, who face a final order of removal. When an alien is removable, he or she has no right under the basic immigration laws to remain in this country. The removal orders reflect the determination that the aliens' ties to this community are insufficient to justify their continued presence in the United States. An alien's admission to this country is conditioned upon compliance with our laws, and removal is the consequence of a breach of that understanding. It is true the Court has accorded more procedural protections to those aliens admitted to the country than those stopped at the border, observing that "a continuously present alien is entitled to a fair hearing when threatened with 721 deportation." ; )). Removable and excludable aliens are situated differently before an order of removal is entered; the removable alien, by virtue of his continued presence here, possesses an interest in remaining, while the excludable alien seeks only the privilege of entry. Still, both removable and inadmissible aliens are entitled to be free from detention that is arbitrary or capricious. Where detention is incident to removal, the detention cannot be justified as punishment nor can the confinement or its conditions be designed in order to punish. See Wong This accords with international views on detention of refugees and asylum seekers. See Report of the United Nations Working Group on Arbitrary Detention, U. N. Doc. E/CN.4//4 ; United Nations High Commissioner for Refugees, Guidelines on Applicable Criteria and Standards Relating to the Detention on Asylum-Seekers It is neither arbitrary nor capricious to detain the aliens when necessary to avoid the risk of flight or danger to the community. Whether a due process right is denied when removable aliens who are flight risks or dangers to the community are detained turns, then, not on the substantive right to be free, but on whether there are adequate procedures to review their cases, allowing persons once subject to detention to show that through rehabilitation, new appreciation of their responsibilities, or under other standards, they no longer present special risks or danger if put at large. The procedures 722 to determine and to review the status-required detention go far toward this objective. By regulations, promulgated after notice and comment, the Attorney General has given structure to the discretion delegated by the INA in order to ensure fairness and regularity in INS detention decisions. First, the INS provides for an initial post custody review, before the expiration of the 90-day removal period, at which a district director conducts a record review. 8 CFR 241.4 The alien is entitled to present any relevant information in support of release, and the district director has the discretion to interview the alien for a personal evaluation. 241.4(h)(1). At the end of the 90-day period, the alien, if held in custody, is transferred to a post order detention unit at INS headquarters, which in the ordinary course will conduct an initial custody review within three months of the transfer. 241.4(k)(2)(ii). If the INS determines the alien should remain in detention, a twomember panel of INS officers interviews the alien and makes a recommendation to INS headquarters. 241.4(i)(1)(3). The regulations provide an extensive, nonexhaustive list of factors that should be considered in the recommendation to release or further detain. Those include: "[t]he nature and number of disciplinary infractions"; "the detainee's criminal conduct and criminal convictions, including consideration of the nature and severity of the alien's convictions, sentences imposed and time actually served, probation and criminal parole history, evidence of recidivism, and other criminal history"; "psychiatric and psychological reports pertaining to the detainee's mental health"; "[e]vidence of rehabilitation"; "[f]avorable factors, including ties to the United States such as the number of close relatives"; "[p]rior immigration violations and history"; "[t]he likelihood that the alien is a significant flight risk or may abscond to avoid removal, including history of escapes"; and any other probative information. 241.4(f). Another review must occur within one year, with mandatory evaluations each year thereafter; if the alien requests, 723 the INS has the discretion to grant more frequent reviews. 241.4(k)(2)(iii). The INS must provide the alien 30-days advance, written notice of custody reviews; and it must afford the alien an opportunity to submit any relevant materials for consideration. 241.4(i)(3)(ii). The alien may be assisted by a representative of his choice during the review, 241.4(i)(3)(i), (ii), and the INS must provide the alien with a copy of its decision, including a brief statement of the reasons for any continued detention, 241.4(d). In this context the proper analysis can be informed by our cases involving parole-eligibility or parole-revocation determinations. In for example, we held some amount of process was due an individual whose parole was revoked, for "the liberty of a parolee, although indeterminate, includes many of the core values of unqualified liberty." ; see also Board of We rejected in Morrissey the suggestion that the State could justify parole revocation "without some informal procedural guarantees," but "[g]iven the previous conviction and the proper imposition of conditions," we recognized that "the State has an overwhelming interest in being able to return the individual to imprisonment without the burden of a new adversary criminal trial," We held the review process need not include a judicial officer or formal court proceeding, but could be conducted by a neutral administrative official. While the majority expresses some concern that the regulations place the burden on the alien to show he is no longer dangerous, that question could be adjudicated in a later case raising the issue. It should be noted the procedural protection here is real, not illusory; and the criteria for obtaining release are far from insurmountable. Statistics show that between February 1999 and mid-November some 6,200 aliens were provided custody reviews before expiration of the 90-day removal period, and of those aliens about 3,380 724 were released. ; Reply Brief for Petitioners in No. 00-38, p. 15. As a result, although the alien carries the burden to prove detention is no longer justified, there is no showing this is an unreasonable burden. Like the parolee in Morrissey, who was aware of the conditions of his release, the aliens in the instant cases have notice, constructive or actual, that the INA imposes as a consequence of the commission of certain crimes not only deportation but also the possibility of continued detention in cases where deportation is not immediately feasible. And like the prisoner in Board of who sought federalcourt review of the discretionary decision denying him parole eligibility, removable aliens held pending deportation have a due process liberty right to have the INS conduct the review procedures in place. See Were the INS, in an arbitrary or categorical manner, to deny an alien access to the administrative processes in place to review continued detention, habeas jurisdiction would lie to redress the due process violation caused by the denial of the mandated procedures under 8 CFR 241.4 This is not the posture of the instant cases, however. Neither Zadvydas nor Ma argues that the Attorney General has applied the procedures in an improper manner; they challenge only the Attorney General's authority to detain at all where removal is no longer foreseeable. The Government has conceded that habeas jurisdiction is available under 28 U. S. C. 2241 to review an alien's challenge to detention following entry of a final order of deportation, Brief for Respondents in No. 99-7791, at 9-10, n. 7; Tr. of Oral Arg. 59, although it does not detail what the nature of the habeas review would be. As a result, we need not decide today whether, and to what extent, a habeas court could review the Attorney General's determination that a detained alien continues to be dangerous or a flight risk. Given the undeniable deprivation of liberty caused by the detention, there might be substantial questions concerning the severity necessary * for there to be a community risk; the adequacy of judicial review in specific cases where it is alleged there is no justification for concluding an alien is dangerous or a flight risk; and other issues. These matters are not presented to us here. In all events, if judicial review is to be available, the inquiry required by the majority focuses on the wrong factors. Concepts of flight risk or future dangerousness are manageable legal categories. See, e. g., ; The majority instead would have the Judiciary review the status of repatriation negotiations, which, one would have thought, are the paradigmatic examples of nonjusticiable inquiry. See 526 U. S., at The inquiry would require the Executive Branch to surrender its primacy in foreign affairs and submit reports to the courts respecting its ongoing negotiations in the international sphere. High officials of the Department of State could be called on to testify as to the status of these negotiations. The Court finds this to be a more manageable, more appropriate role for the Judiciary than to review a single, discrete case deciding whether there were fair procedures and adequate judicial safeguards to determine whether an alien is dangerous to the community so that long-term detention is justified. The Court's rule is a serious misconception of the proper judicial function, and it is not what Congress enacted. For these reasons, the Court should reverse the judgment of the Court of Appeals for the Ninth Circuit and affirm the judgment of the Court of Appeals for the Fifth Circuit. I dissent.	1,903
Justice Kennedy	majority	false	Bond v. United States	2011-06-16	null	https://www.courtlistener.com/opinion/218927/bond-v-united-states/	https://www.courtlistener.com/api/rest/v3/clusters/218927/	2,011	2010-065	2	9	0	This case presents the question whether a person in dicted for violating a federal statute has standing to chal lenge its validity on grounds that, by enacting it, Congress exceeded its powers under the Constitution, thus intrud ing upon the sovereignty and authority of the States. The indicted defendant, petitioner here, sought to ar gue the invalidity of the statute. She relied on the Tenth Amendment, and, by extension, on the premise that Con gress exceeded its powers by enacting it in contravention of basic federalism principles. The statute, 18 U.S. C. §229, was enacted to comply with a treaty; but petitioner contends that, at least in the present instance, the treaty cannot be the source of congressional power to regulate or prohibit her conduct. The Court of Appeals held that because a State was not a party to the federal criminal proceeding, petitioner had no standing to challenge the statute as an infringement upon the powers reserved to the States. Having concluded that petitioner does have standing to challenge the federal statute on these grounds, this Court now reverses that 2 BOND v. UNITED STATES Opinion of the Court determination. The merits of petitioner’s challenge to the statute’s validity are to be considered, in the first instance, by the Court of Appeals on remand and are not addressed in this opinion. I This case arises from a bitter personal dispute, leading to the criminal acts charged here. Petitioner Carol Anne Bond lived outside Philadelphia, Pennsylvania. After dis covering that her close friend was pregnant and that the father was Bond’s husband, Bond sought revenge. Bond subjected the woman to a campaign of harassing telephone calls and letters, acts that resulted in a crimi nal conviction on a minor state charge. Bond persisted in her hostile acts, placing caustic substances on objects the woman was likely to touch, including her mailbox, car door handle, and front doorknob. Bond’s victim suffered a minor burn on her hand and contacted federal investiga tors, who identified Bond as the perpetrator. Bond was indicted in the United States District Court for the Eastern District of Pennsylvania for, among other offenses, two counts of violating §229. Section 229 forbids knowing possession or use of any chemical that “can cause death, temporary incapacitation or permanent harm to humans or animals” where not intended for a “peaceful purpose.” §§229(a); 229F(1); (7); (8). The statute was en acted as part of the Chemical Weapons Convention Implementation Act of 1998, 112 Stat. 2681–856, 22 U.S. C. §6701 et seq.; 18 U.S. C. §229 et seq. The Act implements provisions of the Convention on the Prohibi tion of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, a treaty the United States ratified in 1997. In the District Court, Bond moved to dismiss the §229 charges, contending the statute was beyond Congress’ constitutional authority to enact. The District Court Cite as: 564 U. S. ____ (2011) 3 Opinion of the Court denied the motion. Bond entered a conditional plea of guilty, reserving the right to appeal the ruling on the validity of the statute. She was sentenced to six years in prison. In the Court of Appeals for the Third Circuit, Bond renewed her challenge to the statute, citing, among other authorities, the Tenth Amendment to the Constitution. The Court of Appeals asked for supplemental briefs on the question whether Bond had standing to raise the Tenth Amendment as a ground for invalidating a federal statute in the absence of a State’s participation in the proceedings. In its supplemental brief in the Court of Appeals, the Government took the position that Bond did not have standing. The Court of Appeals agreed. 581 F.3d 128 (2009). When Bond sought certiorari, the Government advised this Court that it had changed its position and that, in its view, Bond does have standing to challenge the constitu tionality of §229 on Tenth Amendment grounds. See Brief for United States (filed July 9, 2010). The Court granted certiorari, 562 U. S. ___ (2010), and appointed an amicus curiae to defend the judgment of the Court of Appeals. Stephen McAllister, a member of the bar of this Court, filed an amicus brief and presented an oral argument that have been of considerable assistance to the Court. II To conclude that petitioner lacks standing to challenge a federal statute on grounds that the measure interferes with the powers reserved to States, the Court of Appeals relied on a single sentence from this Court’s opinion in Tennessee Elec. Power Co. v. TVA, 306 U.S. 118 (1939). See 581 F.3d, at 136–138. As the Court of Appeals noted here, other Courts of Appeals have taken a similar ap proach. E.g., United States v. Hacker, 565 F.3d 522, 525– 527 (CA8 2009); Oregon v. Legal Servs. Corp., 552 F.3d 4 BOND v. UNITED STATES Opinion of the Court 965, 971–972 (CA9 2009); Brooklyn Legal Servs. Corp. v. Legal Servs. Corp., 462 F.3d 219, 234–235 (CA2 2006); Medeiros v. Vincent, 431 F.3d 25, 33–36 (CA1 2005); United States v. Parker, 362 F.3d 1279, 1284–1285 (CA10 2004). That approach is in tension, if not conflict, with decisions of some other Courts of Appeals. See Gillespie v. Indianapolis, 185 F.3d 693, 700–704 (CA7 1999); Metro lina Family Practice Group, P. A. v. Sullivan, 767 F. Supp. 1314 (WDNC 1989), aff’d 929 F.2d 693 (CA4 1991); At lanta Gas Light Co. v. United States Dept. of Energy, 666 F.2d 1359, 1368, n. 16 (CA11 1982); see also United States v. Johnson, 632 F.3d 912, 918–921 (CA5 2011) (reserving issue); Lomont v. O’Neill, 285 F.3d 9, 14, n. 5 (CADC 2002) (same); Nance v. EPA, 645 F.2d 701, 716 (CA9 1981) (same). Tennessee Electric is the appropriate place to begin. It should be clear that Tennessee Electric does not cast doubt on Bond’s standing for purposes of Article III’s case-or controversy requirement. This Court long ago disap proved of the case as authoritative respecting Article III limitations. Association of Data Processing Service Or ganizations, Inc. v. Camp, 397 U.S. 150, 152–154 (1970). In the instant case, moreover, it is apparent—and in fact conceded not only by the Government but also by amicus—that Article III poses no barrier. One who seeks to initiate or continue proceedings in federal court must demonstrate, among other requirements, both standing to obtain the relief requested, see Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–561 (1992), and, in addition, an “ongoing interest in the dispute” on the part of the opposing party that is sufficient to establish “concrete adverseness.” Camreta v. Greene, 563 U. S. ___, ___ (2011) (slip op., at 5) (internal quotation marks omitted). When those conditions are met, Article III does not restrict the opposing party’s ability to object to relief being sought at its expense. The requirement of Article III standing thus Cite as: 564 U. S. ____ (2011) 5 Opinion of the Court had no bearing upon Bond’s capacity to assert defenses in the District Court. As for Bond’s standing to appeal, it is clear Article III’s prerequisites are met. Bond’s challenge to her conviction and sentence “satisfies the case-or controversy requirement, because the incarceration . . . constitutes a concrete injury, caused by the conviction and redressable by invalidation of the conviction.” Spencer v. Kemna, 523 U.S. 1, 7 (1998). To resolve the case, this Court must consider next whether Tennessee Electric is irrelevant with respect to prudential rules of standing as well. The question in Tennessee Electric was whether a group of private power companies could bring suit to enjoin the federally char tered Tennessee Valley Authority (TVA) from producing and selling electric power. It was conceded that competi tion from the TVA would “inflict substantial damage” upon the power companies. 306 U.S., at 137. According to the companies, the federal statute authorizing the creation and operation of the TVA was invalid because, among other reasons, it exceeded the powers of the National Government in violation of the Tenth Amendment. Declining to reach the merits, the Court concluded the power companies’ lawsuit should be dismissed. It ex plained that the suit was premised on the principle that a person threatened with injury by conduct “which, but for statutory authority for its performance, would be a viola tion of his legal rights” could request an injunction from a court of equity and by this means test the validity of the statute. Ibid. But the Court concluded that the TVA, even if it were shorn of congressional statutory authority, had done nothing more than compete as a supplier of electricity. Id., at 138. And since state law did not pur port to grant any of the power companies a monopoly, there was no basis for a suit in which the TVA might be forced to invoke its congressional authorization. Id., at 138–143. 6 BOND v. UNITED STATES Opinion of the Court In that part of its analysis, and throughout its opinion, the Tennessee Electric Court stated that the problem with the power companies’ suit was a lack of “standing” or a “cause of action.” It treated those concepts as inter changeable. E.g., id., at 139 (no “standing” because no “legal cause of complaint”); id., at 139–140 (no “standing” without “a cause of action or a right to sue”); id., at 142 (“no standing,” no “right to sue for an injunction”); id., at 144 (no Tenth Amendment “standing” and no Ninth Amendment “cause of action” for same reasons); see also Bellia, Article III and the Cause of Action, 89 Iowa L. Rev. 777, 826–830 (2004). Even though decisions since Tennessee Electric have been careful to use the terms “cause of action” and “stand ing” with more precision, the distinct concepts can be difficult to keep separate. If, for instance, the person alleging injury is remote from the zone of interests a stat ute protects, whether there is a legal injury at all and whether the particular litigant is one who may assert it can involve similar inquiries. Steel Co. v. Citizens for Better Environment, 523 U.S. 83, 96–97, and n. 2 (1998) (noting that statutory standing and the existence of a cause of action are “closely connected” and “sometimes identical” questions). Still, the question whether a plaintiff states a claim for relief “goes to the merits” in the typical case, not the justi ciability of a dispute, id., at 92, and conflation of the two concepts can cause confusion. This is the case with the Tenth Amendment discussion in Tennessee Electric. The Tennessee Electric Court noted that “[a] distinct ground upon which standing to maintain the suit is said to rest is that the acts of the Authority cannot be upheld without permitting federal regulation of purely local matters re served to the states or the people by the Tenth Amend ment.” 306 U.S., at 143. The Court rejected the argu ment, however, concluding the Tenth Amendment did not Cite as: 564 U. S. ____ (2011) 7 Opinion of the Court give one business a right to keep another from compet- ing. Id., at 144. (“The sale of government property in competition with others is not a violation of the Tenth Amendment”). The Court then added the sentence upon which the Court of Appeals relied in the instant case, the sentence that has been the source of disagreement among Courts of Appeals: “As we have seen there is no objection to the Author ity’s operations by the states, and, if this were not so, the appellants, absent the states or their officers, have no standing in this suit to raise any question under the amendment.” Ibid. The quoted statement was in the context of a decision which held that business competitors had no legal injury, and the word standing can be interpreted in that sense. On this reading, the statement reiterated an earlier point. The statement explained that the States in which the TVA operated exempted it from their public utilities regula tions; and that even if the States had not done so and the TVA had violated those regulations, the regulations were for the States to enforce. See id., at 141–142. They con ferred no private right of action on business competitors. This reading is consistent with the Tennessee Electric Court’s use of the term “standing” elsewhere in its opinion to refer to the existence of a state-law cause of action. A holding that state utilities regulations did not supply a cause of action against a competitor is of no relevance to the instant case, and we need not explore all of its implica tions. See also Data Processing, 397 U.S., at 157–158 (cause of action under the Administrative Procedure Act, 5 U.S. C. §702, permits suit based on injury from business competition). Yet the quoted statement also could be read to refer to standing in the sense of whether the power companies 8 BOND v. UNITED STATES Opinion of the Court were the proper litigants to raise a Tenth Amendment is sue. To the extent that might have been the intention of the Tennessee Electric Court, it is, for reasons to be ex plained, inconsistent with our later precedents. The sen tence from Tennessee Electric that we have quoted and discussed should be deemed neither controlling nor in structive on the issue of standing as that term is now defined and applied. III Amicus contends that federal courts should not adjudi cate a claim like Bond’s because of the prudential rule that a party “generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.” Warth v. Seldin, 422 U.S. 490, 499, 500 (1975); see also Kowalski v. Tesmer, 543 U.S. 125, 129–130 (2004). In amicus’ view, to argue that the National Government has interfered with state sovereignty in violation of the Tenth Amendment is to assert the legal rights and interests of States and States alone. That, however, is not so. As explained below, Bond seeks to vindicate her own constitutional interests. The individual, in a proper case, can assert injury from gov ernmental action taken in excess of the authority that federalism defines. Her rights in this regard do not belong to a State. A The federal system rests on what might at first seem a counterintuitive insight, that “freedom is enhanced by the creation of two governments, not one.” Alden v. Maine, 527 U.S. 706, 758 (1999). The Framers concluded that allocation of powers between the National Government and the States enhances freedom, first by protecting the integrity of the governments themselves, and second by protecting the people, from whom all governmental powers Cite as: 564 U. S. ____ (2011) 9 Opinion of the Court are derived. Federalism has more than one dynamic. It is true that the federal structure serves to grant and delimit the pre rogatives and responsibilities of the States and the Na tional Government vis-à-vis one another. The allocation of powers in our federal system preserves the integrity, dignity, and residual sovereignty of the States. The fed eral balance is, in part, an end in itself, to ensure that States function as political entities in their own right. But that is not its exclusive sphere of operation. Feder alism is more than an exercise in setting the boundary between different institutions of government for their own integrity. “State sovereignty is not just an end in itself: ‘Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power.’ ” New York v. United States, 505 U.S. 144, 181 (1992) (quoting Coleman v. Thompson, 501 U.S. 722, 759 (1991) (Blackmun, J., dissenting)). Some of these liberties are of a political character. The federal structure allows local policies “more sensitive to the diverse needs of a heterogeneous society,” permits “innovation and experimentation,” enables greater citizen “involvement in democratic processes,” and makes gov ernment “more responsive by putting the States in com petition for a mobile citizenry.” Gregory v. Ashcroft, 501 U.S. 452, 458 (1991). Federalism secures the freedom of the individual. It allows States to respond, through the enactment of positive law, to the initiative of those who seek a voice in shaping the destiny of their own times without having to rely solely upon the political processes that control a remote central power. True, of course, these objects cannot be vindicated by the Judiciary in the ab sence of a proper case or controversy; but the individual liberty secured by federalism is not simply derivative of the rights of the States. Federalism also protects the liberty of all persons within 10 BOND v. UNITED STATES Opinion of the Court a State by ensuring that laws enacted in excess of dele gated governmental power cannot direct or control their actions. See ibid. By denying any one government com plete jurisdiction over all the concerns of public life, feder alism protects the liberty of the individual from arbitrary power. When government acts in excess of its lawful powers, that liberty is at stake. The limitations that federalism entails are not therefore a matter of rights belonging only to the States. States are not the sole intended beneficiaries of federalism. See New York, supra, at 181. An individual has a direct interest in objecting to laws that upset the constitutional balance between the National Government and the States when the enforcement of those laws causes injury that is con crete, particular, and redressable. Fidelity to principles of federalism is not for the States alone to vindicate. The recognition of an injured person’s standing to object to a violation of a constitutional principle that allocates power within government is illustrated, in an analogous context, by cases in which individuals sustain discrete, justiciable injury from actions that transgress separation of-powers limitations. Separation-of-powers principles are intended, in part, to protect each branch of government from incursion by the others. Yet the dynamic between and among the branches is not the only object of the Con stitution’s concern. The structural principles secured by the separation of powers protect the individual as well. In the precedents of this Court, the claims of individu als—not of Government departments—have been the principal source of judicial decisions concerning separation of powers and checks and balances. For example, the re quirement that a bill enacted by Congress be presented to the President for signature before it can become law gives the President a check over Congress’ exercise of legislative power. See U. S. Const., Art. I, §7. Yet indi viduals, too, are protected by the operations of separation Cite as: 564 U. S. ____ (2011) 11 Opinion of the Court of powers and checks and balances; and they are not dis abled from relying on those principles in otherwise justici able cases and controversies. In INS v. Chadha, 462 U.S. 919 (1983), it was an individual who successfully chal lenged the so-called legislative veto—a procedure that Congress used in an attempt to invalidate an executive determination without presenting the measure to the President. The procedure diminished the role of the Ex ecutive, but the challenger sought to protect not the prerogatives of the Presidency as such but rather his own right to avoid deportation under an invalid order. Chadha’s challenge was sustained. A cardinal principle of separation of powers was vindicated at the insistence of an individual, indeed one who was not a citizen of the United States but who still was a person whose liberty was at risk. Chadha is not unique in this respect. Compare Clinton v. City of New York, 524 U.S. 417, 433–436 (1998) (injured parties have standing to challenge Presidential line-item veto) with Raines v. Byrd, 521 U.S. 811, 829–830 (1997) (Congress Members do not); see also, e.g., Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U. S. ___ (2010); Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995); Bowsher v. Synar, 478 U.S. 714 (1986); North ern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952); A. L. A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935). If the constitutional structure of our Government that protects individual liberty is compromised, individuals who suffer otherwise justiciable injury may object. Just as it is appropriate for an individual, in a proper case, to invoke separation-of-powers or checks-and balances constraints, so too may a litigant, in a proper case, challenge a law as enacted in contravention of consti tutional principles of federalism. That claim need not 12 BOND v. UNITED STATES Opinion of the Court depend on the vicarious assertion of a State’s constitu tional interests, even if a State’s constitutional interests are also implicated. B In this regard it is necessary to address a misconception in the position the Government now urges this Court to adopt. As noted, the Government agrees that petitioner has standing to challenge the validity of §229. That con cession, however, depends on describing petitioner’s claim in a narrow way. The Government contends petitioner asserts only that Congress could not enact the challenged statute under its enumerated powers. Were she to argue, the Government insists, that the statute “interferes with a specific aspect of state sovereignty,” either instead of or in addition to her enumerated powers contention, the Court should deny her standing. Brief for United States 18 (filed Dec. 3, 2010). The premise that petitioner does or should avoid making an “interference-with-sovereignty” argument is flawed. Id., at 33. Here she asserts, for example, that the conduct with which she is charged is “local in nature” and “should be left to local authorities to prosecute” and that congres sional regulation of that conduct “signals a massive and unjustifiable expansion of federal law enforcement into state-regulated domain.” Record in No. 2:07–cr–00528– JG–1 (ED Pa.), Doc. 27, pp. 6, 19. The public policy of the Commonwealth of Pennsylvania, enacted in its capacity as sovereign, has been displaced by that of the National Government. The law to which petitioner is subject, the prosecution she seeks to counter, and the punishment she must face might not have come about if the matter were left for the Commonwealth of Pennsylvania to decide. Indeed, petitioner argues that under Pennsylvania law the expected maximum term of imprisonment she could have received for the same conduct was barely more than a Cite as: 564 U. S. ____ (2011) 13 Opinion of the Court third of her federal sentence. There is no basis to support the Government’s pro posed distinction between different federalism arguments for purposes of prudential standing rules. The princi- ples of limited national powers and state sovereignty are intertwined. While neither originates in the Tenth Amend ment, both are expressed by it. Impermissible interfer ence with state sovereignty is not within the enumerated powers of the National Government, see New York, 505 U.S., at 155–159, and action that exceeds the National Government’s enumerated powers undermines the sover eign interests of States. See United States v. Lopez, 514 U.S. 549, 564 (1995). The unconstitutional action can cause concomitant injury to persons in individual cases. An individual who challenges federal action on these grounds is, of course, subject to the Article III require ments, as well as prudential rules, applicable to all liti gants and claims. Individuals have “no standing to com plain simply that their Government is violating the law.” Allen v. Wright, 468 U.S. 737, 755 (1984). It is not enough that a litigant “suffers in some indefinite way in common with people generally.” Frothingham v. Mellon, 262 U.S. 447, 488 (1923) (decided with Massachusetts v. Mellon). If, in connection with the claim being asserted, a litigant who commences suit fails to show actual or immi nent harm that is concrete and particular, fairly traceable to the conduct complained of, and likely to be redressed by a favorable decision, the Federal Judiciary cannot hear the claim. Lujan, 504 U.S., at 560–561. These requirements must be satisfied before an individual may assert a consti tutional claim; and in some instances, the result may be that a State is the only entity capable of demonstrating the requisite injury. In this case, however, where the litigant is a party to an otherwise justiciable case or controversy, she is not forbid den to object that her injury results from disregard of the 14 BOND v. UNITED STATES Opinion of the Court federal structure of our Government. Whether the Tenth Amendment is regarded as simply a “ ‘truism,’ ” New York, supra, at 156 (quoting United States v. Darby, 312 U.S. 100, 124 (1941)), or whether it has independent force of its own, the result here is the same. * * * There is no basis in precedent or principle to deny peti tioner’s standing to raise her claims. The ultimate issue of the statute’s validity turns in part on whether the law can be deemed “necessary and proper for carrying into Execu tion” the President’s Article II, §2 Treaty Power, see U. S. Const., Art. I, §8, cl. 18. This Court expresses no view on the merits of that argument. It can be addressed by the Court of Appeals on remand. 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. Cite as: 564 U. S. ____ (2011) 1 GINSBURG, J., concurring SUPREME COURT OF THE UNITED STATES _________________ No. 09–1227 _________________ CAROL ANNE BOND, PETITIONER v.	This case presents the question whether a person in dicted for violating a federal statute has standing to chal lenge its validity on grounds that, by enacting it, Congress exceeded its powers under the Constitution, thus intrud ing upon the sovereignty and authority of the States. The indicted defendant, petitioner here, sought to ar gue the invalidity of the statute. She relied on the Tenth Amendment, and, by extension, on the premise that Con gress exceeded its powers by enacting it in contravention of basic federalism principles. The statute, 18 U.S. C. was enacted to comply with a treaty; but petitioner contends that, at least in the present instance, the treaty cannot be the source of congressional power to regulate or prohibit her conduct. The Court of Appeals held that because a State was not a party to the federal criminal proceeding, petitioner had no standing to challenge the statute as an infringement upon the powers reserved to the States. Having concluded that petitioner does have standing to challenge the federal statute on these grounds, this Court now reverses that 2 BOND v. UNITED STATES Opinion of the Court determination. The merits of petitioner’s challenge to the statute’s validity are to be considered, in the first instance, by the Court of Appeals on remand and are not addressed in this opinion. I This case arises from a bitter personal dispute, leading to the criminal acts charged here. Petitioner Carol Anne Bond lived outside Philadelphia, Pennsylvania. After dis covering that her close friend was pregnant and that the father was Bond’s husband, Bond sought revenge. Bond subjected the woman to a campaign of harassing telephone calls and letters, acts that resulted in a crimi nal conviction on a minor state charge. Bond persisted in her hostile acts, placing caustic substances on objects the woman was likely to touch, including her mailbox, car door handle, and front doorknob. Bond’s victim suffered a minor burn on her hand and contacted federal investiga tors, who identified Bond as the perpetrator. Bond was indicted in the United States District Court for the Eastern District of Pennsylvania for, among other offenses, two counts of violating Section 229 forbids knowing possession or use of any chemical that “can cause death, temporary incapacitation or permanent harm to humans or animals” where not intended for a “peaceful purpose.” 229F(1); (); (8). The statute was en acted as part of the Chemical Weapons Convention Implementation Act of 1998, –856, 22 U.S. C. et seq.; 18 U.S. C. et seq. The Act implements provisions of the Convention on the Prohibi tion of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, a treaty the United States ratified in 199. In the District Court, Bond moved to dismiss the charges, contending the statute was beyond Congress’ constitutional authority to enact. The District Court Cite as: 564 U. S. 3 Opinion of the Court denied the motion. Bond entered a conditional plea of guilty, reserving the right to appeal the ruling on the validity of the statute. She was sentenced to six years in prison. In the Court of Appeals for the Third Circuit, Bond renewed her challenge to the statute, citing, among other authorities, the Tenth Amendment to the Constitution. The Court of Appeals asked for supplemental briefs on the question whether Bond had standing to raise the Tenth Amendment as a ground for invalidating a federal statute in the absence of a State’s participation in the proceedings. In its supplemental brief in the Court of Appeals, the Government took the position that Bond did not have standing. The Court of Appeals agreed. (2009). When Bond sought certiorari, the Government advised this Court that it had changed its position and that, in its view, Bond does have standing to challenge the constitu tionality of on Tenth Amendment grounds. See Brief for United States (filed July 9, 2010). The Court granted certiorari, 562 U. S. (2010), and appointed an amicus curiae to defend the judgment of the Court of Appeals. Stephen McAllister, a member of the bar of this Court, filed an amicus brief and presented an oral argument that have been of considerable assistance to the Court. II To conclude that petitioner lacks standing to challenge a federal statute on grounds that the measure interferes with the powers reserved to States, the Court of Appeals relied on a single sentence from this Court’s opinion in Tennessee Elec. Power See –138. As the Court of Appeals noted here, other Courts of Appeals have taken a similar ap proach. E.g., United 525– 52 (CA8 2009); Oregon v. Legal Servs. Corp., 552 F.3d 4 BOND v. UNITED STATES Opinion of the Court 965, 91–92 (CA9 2009); Brooklyn Legal Servs. Corp. v. Legal Servs. Corp., ; ; United 1284–1285 That approach is in tension, if not conflict, with decisions of some other Courts of Appeals. See Gillespie v. Indianapolis, ; Metro lina Family Practice Group, P. ; At lanta Gas Light Co. v. United States Dept. of Energy, 666 F.2d 1359, 1368, n. 16 (CA11 1982); see also United States v. Johnson, (reserving issue); (CADC 2002) (same); (CA9 1981) (same). Tennessee Electric is the appropriate place to begin. It should be clear that Tennessee Electric does not cast doubt on Bond’s standing for purposes of Article III’s case-or controversy requirement. This Court long ago disap proved of the case as authoritative respecting Article III limitations. Association of Data Service Or ganizations, In the instant case, moreover, it is apparent—and in fact conceded not only by the Government but also by amicus—that Article III poses no barrier. One who seeks to initiate or continue proceedings in federal court must demonstrate, among other requirements, both standing to obtain the relief requested, see and, in addition, an “ongoing interest in the dispute” on the part of the opposing party that is sufficient to establish “concrete adverseness.” Camreta v. Greene, 563 U. S. (slip op., at 5) (internal quotation marks omitted). When those conditions are met, Article III does not restrict the opposing party’s ability to object to relief being sought at its expense. The requirement of Article III standing thus Cite as: 564 U. S. 5 Opinion of the Court had no bearing upon Bond’s capacity to assert defenses in the District Court. As for Bond’s standing to appeal, it is clear Article III’s prerequisites are met. Bond’s challenge to her conviction and sentence “satisfies the case-or controversy requirement, because the incarceration constitutes a concrete injury, caused by the conviction and redressable by invalidation of the conviction.” Spencer v. Kemna, To resolve the case, this Court must consider next whether Tennessee Electric is irrelevant with respect to prudential rules of standing as well. The question in Tennessee Electric was whether a group of private power companies could bring suit to enjoin the federally char tered Tennessee Valley Authority (TVA) from producing and selling electric power. It was conceded that competi tion from the TVA would “inflict substantial damage” upon the power 306 U.S., at 13. According to the companies, the federal statute authorizing the creation and operation of the TVA was invalid because, among other reasons, it exceeded the powers of the National Government in violation of the Tenth Amendment. Declining to reach the merits, the Court concluded the power companies’ lawsuit should be dismissed. It ex plained that the suit was premised on the principle that a person threatened with injury by conduct “which, but for statutory authority for its performance, would be a viola tion of his legal rights” could request an injunction from a court of equity and by this means test the validity of the statute. But the Court concluded that the TVA, even if it were shorn of congressional statutory authority, had done nothing more than compete as a supplier of electricity. And since state law did not pur port to grant any of the power companies a monopoly, there was no basis for a suit in which the TVA might be forced to invoke its congressional authorization. at 138–143. 6 BOND v. UNITED STATES Opinion of the Court In that part of its analysis, and throughout its opinion, the Tennessee Electric Court stated that the problem with the power companies’ suit was a lack of “standing” or a “cause of action.” It treated those concepts as inter changeable. E.g., (no “standing” because no “legal cause of complaint”); –140 (no “standing” without “a cause of action or a right to sue”); (“no standing,” no “right to sue for an injunction”); (no Tenth Amendment “standing” and no Ninth Amendment “cause of action” for same reasons); see also Bellia, Article III and the Cause of Action, 89 Iowa L. Rev. 826–830 Even though decisions since Tennessee Electric have been careful to use the terms “cause of action” and “stand ing” with more precision, the distinct concepts can be difficult to keep separate. If, for instance, the person alleging injury is remote from the zone of interests a stat ute protects, whether there is a legal injury at all and whether the particular litigant is one who may assert it can involve similar inquiries. Steel 96–9, and n. 2 (noting that statutory standing and the existence of a cause of action are “closely connected” and “sometimes identical” questions). Still, the question whether a plaintiff states a claim for relief “goes to the merits” in the typical case, not the justi ciability of a dispute, and conflation of the two concepts can cause confusion. This is the case with the Tenth Amendment discussion in Tennessee Electric. The Tennessee Electric Court noted that “[a] distinct ground upon which standing to maintain the suit is said to rest is that the acts of the Authority cannot be upheld without permitting federal regulation of purely local matters re served to the states or the people by the Tenth Amend ment.” The Court rejected the argu ment, however, concluding the Tenth Amendment did not Cite as: 564 U. S. Opinion of the Court give one business a right to keep another from compet- ing. (“The sale of government property in competition with others is not a violation of the Tenth Amendment”). The Court then added the sentence upon which the Court of Appeals relied in the instant case, the sentence that has been the source of disagreement among Courts of Appeals: “As we have seen there is no objection to the Author ity’s operations by the states, and, if this were not so, the appellants, absent the states or their officers, have no standing in this suit to raise any question under the amendment.” The quoted statement was in the context of a decision which held that business competitors had no legal injury, and the word standing can be interpreted in that sense. On this reading, the statement reiterated an earlier point. The statement explained that the States in which the TVA operated exempted it from their public utilities regula tions; and that even if the States had not done so and the TVA had violated those regulations, the regulations were for the States to enforce. See at 141–142. They con ferred no private right of action on business competitors. This reading is consistent with the Tennessee Electric Court’s use of the term “standing” elsewhere in its opinion to refer to the existence of a state-law cause of action. A holding that state utilities regulations did not supply a cause of action against a competitor is of no relevance to the instant case, and we need not explore all of its implica tions. See also Data 39 U.S., at 15–158 (cause of action under the Administrative Procedure Act, 5 U.S. C. §02, permits suit based on injury from business competition). Yet the quoted statement also could be read to refer to standing in the sense of whether the power companies 8 BOND v. UNITED STATES Opinion of the Court were the proper litigants to raise a Tenth Amendment is sue. To the extent that might have been the intention of the Tennessee Electric Court, it is, for reasons to be ex plained, inconsistent with our later precedents. The sen tence from Tennessee Electric that we have quoted and discussed should be deemed neither controlling nor in structive on the issue of standing as that term is now defined and applied. III Amicus contends that federal courts should not adjudi cate a claim like Bond’s because of the prudential rule that a party “generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.” Warth v. Seldin, 422 U.S. 490, 499, 500 (195); see also In amicus’ view, to argue that the National Government has interfered with state sovereignty in violation of the Tenth Amendment is to assert the legal rights and interests of States and States alone. That, however, is not so. As explained below, Bond seeks to vindicate her own constitutional interests. The individual, in a proper case, can assert injury from gov ernmental action taken in excess of the authority that federalism defines. Her rights in this regard do not belong to a State. A The federal system rests on what might at first seem a counterintuitive insight, that “freedom is enhanced by the creation of two governments, not one.” 52 U.S. 06, 58 The Framers concluded that allocation of powers between the National Government and the States enhances freedom, first by protecting the integrity of the governments themselves, and second by protecting the people, from whom all governmental powers Cite as: 564 U. S. 9 Opinion of the Court are derived. Federalism has more than one dynamic. It is true that the federal structure serves to grant and delimit the pre rogatives and responsibilities of the States and the Na tional Government vis-à-vis one another. The allocation of powers in our federal system preserves the integrity, dignity, and residual sovereignty of the States. The fed eral balance is, in part, an end in itself, to ensure that States function as political entities in their own right. But that is not its exclusive sphere of operation. Feder alism is more than an exercise in setting the boundary between different institutions of government for their own integrity. “State sovereignty is not just an end in itself: ‘Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power.’ ” New v. United States, (Blackmun, J., dissenting)). Some of these liberties are of a political character. The federal structure allows local policies “more sensitive to the diverse needs of a heterogeneous society,” permits “innovation and experimentation,” enables greater citizen “involvement in democratic processes,” and makes gov ernment “more responsive by putting the States in com petition for a mobile citizenry.” Gregory v. Ashcroft, 501 U.S. 452, 458 Federalism secures the freedom of the individual. It allows States to respond, through the enactment of positive law, to the initiative of those who seek a voice in shaping the destiny of their own times without having to rely solely upon the political processes that control a remote central power. True, of course, these objects cannot be vindicated by the Judiciary in the ab sence of a proper case or controversy; but the individual liberty secured by federalism is not simply derivative of the rights of the States. Federalism also protects the liberty of all persons within 10 BOND v. UNITED STATES Opinion of the Court a State by ensuring that laws enacted in excess of dele gated governmental power cannot direct or control their actions. See By denying any one government com plete jurisdiction over all the concerns of public life, feder alism protects the liberty of the individual from arbitrary power. When government acts in excess of its lawful powers, that liberty is at stake. The limitations that federalism entails are not therefore a matter of rights belonging only to the States. States are not the sole intended beneficiaries of federalism. See New at An individual has a direct interest in objecting to laws that upset the constitutional balance between the National Government and the States when the enforcement of those laws causes injury that is con crete, particular, and redressable. Fidelity to principles of federalism is not for the States alone to vindicate. The recognition of an injured person’s standing to object to a violation of a constitutional principle that allocates power within government is illustrated, in an analogous context, by cases in which individuals sustain discrete, justiciable injury from actions that transgress separation of-powers limitations. Separation-of-powers principles are intended, in part, to protect each branch of government from incursion by the others. Yet the dynamic between and among the branches is not the only object of the Con stitution’s concern. The structural principles secured by the separation of powers protect the individual as well. In the precedents of this Court, the claims of individu als—not of Government departments—have been the principal source of judicial decisions concerning separation of powers and checks and balances. For example, the re quirement that a bill enacted by Congress be presented to the President for signature before it can become law gives the President a check over Congress’ exercise of legislative power. See U. S. Const., Art. I, §. Yet indi viduals, too, are protected by the operations of separation Cite as: 564 U. S. 11 Opinion of the Court of powers and checks and balances; and they are not dis abled from relying on those principles in otherwise justici able cases and controversies. In INS v. Chadha, 462 U.S. 919 (1983), it was an individual who successfully chal lenged the so-called legislative veto—a procedure that Congress used in an attempt to invalidate an executive determination without presenting the measure to the President. The procedure diminished the role of the Ex ecutive, but the challenger sought to protect not the prerogatives of the Presidency as such but rather his own right to avoid deportation under an invalid order. Chadha’s challenge was sustained. A cardinal principle of separation of powers was vindicated at the insistence of an individual, indeed one who was not a citizen of the United States but who still was a person whose liberty was at risk. Chadha is not unique in this respect. Compare Clinton v. City of New 524 U.S. 41, (injured parties have standing to challenge Presidential line-item veto) with (199) (Congress Members do not); see also, e.g., Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U. S. (2010); Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995); 48 U.S. 14 ; North ern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982); Youngstown Sheet & Tube 343 U.S. 59 ; A. L. A. Schechter Poultry Corp. v. United States, If the constitutional structure of our Government that protects individual liberty is compromised, individuals who suffer otherwise justiciable injury may object. Just as it is appropriate for an individual, in a proper case, to invoke separation-of-powers or checks-and balances constraints, so too may a litigant, in a proper case, challenge a law as enacted in contravention of consti tutional principles of federalism. That claim need not 12 BOND v. UNITED STATES Opinion of the Court depend on the vicarious assertion of a State’s constitu tional interests, even if a State’s constitutional interests are also implicated. B In this regard it is necessary to address a misconception in the position the Government now urges this Court to adopt. As noted, the Government agrees that petitioner has standing to challenge the validity of That con cession, however, depends on describing petitioner’s claim in a narrow way. The Government contends petitioner asserts only that Congress could not enact the challenged statute under its enumerated powers. Were she to argue, the Government insists, that the statute “interferes with a specific aspect of state sovereignty,” either instead of or in addition to her enumerated powers contention, the Court should deny her standing. Brief for United States 18 (filed Dec. 3, 2010). The premise that petitioner does or should avoid making an “interference-with-sovereignty” argument is flawed. Here she asserts, for example, that the conduct with which she is charged is “local in nature” and “should be left to local authorities to prosecute” and that congres sional regulation of that conduct “signals a massive and unjustifiable expansion of federal law enforcement into state-regulated domain.” Record in No. 2:0–cr–00528– JG–1 (ED Pa.), Doc. 2, pp. 6, 19. The public policy of the Commonwealth of Pennsylvania, enacted in its capacity as sovereign, has been displaced by that of the National Government. The law to which petitioner is subject, the prosecution she seeks to counter, and the punishment she must face might not have come about if the matter were left for the Commonwealth of Pennsylvania to decide. Indeed, petitioner argues that under Pennsylvania law the expected maximum term of imprisonment she could have received for the same conduct was barely more than a Cite as: 564 U. S. 13 Opinion of the Court third of her federal sentence. There is no basis to support the Government’s pro posed distinction between different federalism arguments for purposes of prudential standing rules. The princi- ples of limited national powers and state sovereignty are intertwined. While neither originates in the Tenth Amend ment, both are expressed by it. Impermissible interfer ence with state sovereignty is not within the enumerated powers of the National Government, see New 505 U.S., at 155–159, and action that exceeds the National Government’s enumerated powers undermines the sover eign interests of States. See United States v. Lopez, 514 U.S. 549, 564 (1995). The unconstitutional action can cause concomitant injury to persons in individual cases. An individual who challenges federal action on these grounds is, of course, subject to the Article III require ments, as well as prudential rules, applicable to all liti gants and claims. Individuals have “no standing to com plain simply that their Government is violating the law.” 468 U.S. 3, 55 It is not enough that a litigant “suffers in some indefinite way in common with people generally.” 262 U.S. 44, (decided with Massachusetts v. Mellon). If, in connection with the claim being asserted, a litigant who commences suit fails to show actual or immi nent harm that is concrete and particular, fairly traceable to the conduct complained of, and likely to be redressed by a favorable decision, the Federal Judiciary cannot hear the claim. 504 U.S., at These requirements must be satisfied before an individual may assert a consti tutional claim; and in some instances, the result may be that a State is the only entity capable of demonstrating the requisite injury. In this case, however, where the litigant is a party to an otherwise justiciable case or controversy, she is not forbid den to object that her injury results from disregard of the 14 BOND v. UNITED STATES Opinion of the Court federal structure of our Government. Whether the Tenth Amendment is regarded as simply a “ ‘truism,’ ” New (quoting United States v. Darby, 312 U.S. 100, 124 (1941)), or whether it has independent force of its own, the result here is the same. * * * There is no basis in precedent or principle to deny peti tioner’s standing to raise her claims. The ultimate issue of the statute’s validity turns in part on whether the law can be deemed “necessary and proper for carrying into Execu tion” the President’s Article II, Treaty Power, see U. S. Const., Art. I, cl. 18. This Court expresses no view on the merits of that argument. It can be addressed by the Court of Appeals on remand. 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. Cite as: 564 U. S. 1 GINSBURG, J., concurring SUPREME COURT OF THE UNITED STATES No. 09–122 CAROL ANNE BOND, PETITIONER v.	1,906
Justice Ginsburg	concurring	false	Bond v. United States	2011-06-16	null	https://www.courtlistener.com/opinion/218927/bond-v-united-states/	https://www.courtlistener.com/api/rest/v3/clusters/218927/	2,011	2010-065	2	9	0	I join the Court’s opinion and write separately to make the following observation. Bond, like any other defendant, has a personal right not to be convicted under a constitu tionally invalid law. See Fallon, As-Applied and Facial Challenges and Third-Party Standing, 113 Harv. L. Rev. 1321, 1331–1333 (2000); Monaghan, Overbreadth, 1981 Sup. Ct. Rev. 1, 3. See also North Carolina v. Pearce, 395 U.S. 711, 739 (1969) (Black, J., concurring in part and dissenting in part) (“Due process . . . is a guarantee that a man should be tried and convicted only in accordance with valid laws of the land.”). In this case, Bond argues that the statute under which she was charged, 18 U.S. C. §229, exceeds Congress’ enumerated powers and violates the Tenth Amendment. Other defendants might assert that a law exceeds Con gress’ power because it violates the Ex Post Facto Clause, or the Establishment Clause, or the Due Process Clause. Whatever the claim, success on the merits would require reversal of the conviction. “An offence created by [an unconstitutional law],” the Court has held, “is not a crime.” Ex parte Siebold, 100 U.S. 371, 376 (1880). “A conviction under [such a law] is not merely erroneous, but is illegal and void, and cannot be a legal cause of impris 2 BOND v. UNITED STATES GINSBURG, J., concurring onment.” Id., at 376–377. If a law is invalid as applied to the criminal defendant’s conduct, the defendant is entitled to go free. For this reason, a court has no “prudential” license to decline to consider whether the statute under which the defendant has been charged lacks constitutional applica tion to her conduct. And that is so even where the consti tutional provision that would render the conviction void is directed at protecting a party not before the Court. Our decisions concerning criminal laws infected with discrimi nation are illustrative. The Court must entertain the objection—and reverse the conviction—even if the right to equal treatment resides in someone other than the de fendant. See Eisenstadt v. Baird, 405 U.S. 438, 452–455 (1972) (reversing conviction for distributing contraceptives because the law banning distribution violated the recipi ent’s right to equal protection); cf. Craig v. Boren, 429 U.S. 190, 192, 210, and n. 24 (1976) (law penalizing sale of beer to males but not females aged 18 to 20 could not be enforced against vendor). See also Grayned v. City of Rockford, 408 U.S. 104, 107, n. 2 (1972); Welsh v. United States, 398 U.S. 333, 361–362 (1970) (Harlan, J., concur ring in result) (reversal required even if, going forward, Congress would cure the unequal treatment by extending rather than invalidating the criminal proscription). In short, a law “beyond the power of Congress,” for any reason, is “no law at all.” Nigro v. United States, 276 U.S. 332, 341 (1928). The validity of Bond’s conviction depends upon whether the Constitution permits Congress to enact §229. Her claim that it does not must be considered and decided on the merits	I join the Court’s opinion and write separately to make the following observation. Bond, like any other defendant, has a personal right not to be convicted under a constitu tionally invalid law. See Fallon, As-Applied and Facial Challenges and Third-Party Standing, 113 Harv. L. Rev. 1321, 1331–1333 (2000); Monaghan, Overbreadth, 1981 Sup. Ct. Rev. 1, 3. See also North Carolina v. Pearce, 395 U.S. 711, 739 (1969) (Black, J., concurring in part and dissenting in part) (“Due process is a guarantee that a man should be tried and convicted only in accordance with valid laws of the land.”). In this case, Bond argues that the statute under which she was charged, 18 U.S. C. exceeds Congress’ enumerated powers and violates the Tenth Amendment. Other defendants might assert that a law exceeds Con gress’ power because it violates the Ex Post Facto Clause, or the Establishment Clause, or the Due Process Clause. Whatever the claim, success on the merits would require reversal of the conviction. “An offence created by [an unconstitutional law],” the Court has held, “is not a crime.” Ex parte Siebold, “A conviction under [such a law] is not merely erroneous, but is illegal and void, and cannot be a legal cause of impris 2 BOND v. UNITED STATES GINSBURG, J., concurring onment.” at –377. If a law is invalid as applied to the criminal defendant’s conduct, the defendant is entitled to go free. For this reason, a court has no “prudential” license to decline to consider whether the statute under which the defendant has been charged lacks constitutional applica tion to her conduct. And that is so even where the consti tutional provision that would render the conviction void is directed at protecting a party not before the Court. Our decisions concerning criminal laws infected with discrimi nation are illustrative. The Court must entertain the objection—and reverse the conviction—even if the right to equal treatment resides in someone other than the de fendant. See 452–455 (reversing conviction for distributing contraceptives because the law banning distribution violated the recipi ent’s right to equal protection); cf. Craig v. Boren, 429 U.S. 190, 192, 210, and n. 24 (1976) (law penalizing sale of beer to males but not females aged 18 to 20 could not be enforced against vendor). See also ; (Harlan, J., concur ring in result) (reversal required even if, going forward, Congress would cure the unequal treatment by extending rather than invalidating the criminal proscription). In short, a law “beyond the power of Congress,” for any reason, is “no law at all.” Nigro v. United States, 276 U.S. 332, 341 (1928). The validity of Bond’s conviction depends upon whether the Constitution permits Congress to enact Her claim that it does not must be considered and decided on the merits	1,907
per_curiam	per_curiam	true	Kane v. Garcia Espitia	2005-10-31	null	https://www.courtlistener.com/opinion/145118/kane-v-garcia-espitia/	https://www.courtlistener.com/api/rest/v3/clusters/145118/	2,005	2005-003	1	9	0	Respondent Garcia Espitia, a criminal defendant who chose to proceed pro se, was convicted in California state court of carjacking and other offenses. He had received no law library access while in jail before trialdespite his repeated requests and court orders to the contraryand only about four hours of access during trial, just before closing arguments. (Of course, he had declined, as was his right, to be represented by a lawyer with unlimited access to legal materials.) The California courts rejected his argument that his restricted library access violated his Sixth Amendment rights. Once his sentence became final, he petitioned in Federal District Court for a writ of habeas corpus under 28 U.S.C. § 2254. The District Court denied relief, but the 10 Court of Appeals for the Ninth Circuit reversed, holding that "the lack of any pretrial access to lawbooks violated Espitia's constitutional right to represent himself as established by the Supreme Court in Faretta [v. California, 422 U.S. 806 (1975)]." Garcia Espitia v. Ortiz, 113 Fed. Appx. 802, 804 (2004). The warden's petition for certiorari and respondent's motion for leave to proceed in forma pauperis are granted, the judgment below is reversed, and the case is remanded. A necessary condition for federal habeas relief here is that the state court's decision be "contrary to, or involv[e] an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." § 2254(d)(1). Neither the opinion below, nor any of the appellate cases it relies on, identifies a source in our case law for the law library access right other than Faretta. See id., at 804 (relying on Bribiesca v. Galaza, 215 F.3d 1015, 1020 (CA9 2000) (quoting Milton v. Morris, 767 F.2d 1443, 1446 (CA9 1985))); ibid. ("Faretta controls this case"). The federal appellate courts have split on whether Faretta, which establishes a Sixth Amendment right to self-representation, implies a right of the pro se defendant to have access to a law library. Compare Milton, supra, with United States v. Smith, 907 F.2d 42, 45 (CA6 1990) ("[B]y knowingly and intelligently waiving his right to counsel, the appellant also relinquished his access to a law library"); United States ex rel. George v. Lane, 718 F.2d 226, 231 (CA7 1983) (similar). That question cannot be resolved here, however, as it is clear that Faretta does not, as § 2254(d)(1) requires, "clearly establis[h]" the law library access right. In fact, Faretta says nothing about any specific legal aid that the State owes a pro se criminal defendant. The Bribiesca court and the court below therefore erred in holding, based on Faretta, that a violation of a law library access right is a basis for federal habeas relief. 11 The judgment below is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered	Respondent Garcia Espitia, a criminal defendant who chose to proceed pro se, was convicted in California state court of carjacking and other offenses. He had received no law library access while in jail before trialdespite his repeated requests and court orders to the contraryand only about four hours of access during trial, just before closing arguments. (Of course, he had declined, as was his right, to be represented by a lawyer with unlimited access to legal materials.) The California courts rejected his argument that his restricted library access violated his Sixth Amendment rights. Once his sentence became final, he petitioned in Federal District Court for a writ of habeas corpus under The District Court denied relief, but the 10 Court of Appeals for the Ninth Circuit reversed, holding that "the lack of any pretrial access to lawbooks violated Espitia's constitutional right to represent himself as established by the Supreme Court in Faretta [v. California, ]." Garcia The warden's petition for certiorari and respondent's motion for leave to proceed in forma pauperis are granted, the judgment below is reversed, and the case is remanded. A necessary condition for federal habeas relief here is that the state court's decision be "contrary to, or involv[e] an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 2254(d)(1). Neither the opinion below, nor any of the appellate cases it relies on, identifies a source in our case law for the law library access right other than Faretta. See at ); The federal appellate courts have split on whether Faretta, which establishes a Sixth Amendment right to self-representation, implies a right of the pro se defendant to have access to a law library. Compare with United ; United States ex rel. That question cannot be resolved here, however, as it is clear that Faretta does not, as 2254(d)(1) requires, "clearly establis[h]" the law library access right. In fact, Faretta says nothing about any specific legal aid that the State owes a pro se criminal defendant. The Bribiesca court and the court below therefore erred in holding, based on Faretta, that a violation of a law library access right is a basis for federal habeas relief. 11 The judgment below is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered	1,914
Justice Souter	majority	false	North Star Steel Co. v. Thomas	1995-05-30	null	https://www.courtlistener.com/opinion/117941/north-star-steel-co-v-thomas/	https://www.courtlistener.com/api/rest/v3/clusters/117941/	1,995	1994-063	1	9	0	The Worker Adjustment and Retraining Notification Act (WARN or Act), 102 Stat. 890, 29 U.S. C. § 2101 et seq. , obliges covered employers to give employees or their union 60 days notice of a plant closing or mass layoff. These consolidated cases raise the issue of the proper source of the limitations period for civil actions brought to enforce the Act. For actions brought in Pennsylvania, and generally, we hold it to be state law. I With some exceptions and conditions, WARN forbids an employer of 100 or more employees to "order a plant closing or mass layoff until the end of a 60-day period after the employer serves written notice of such an order." 29 U.S. C. § 2102(a). The employer is supposed to notify, among others, "each affected employee" or "each representative of the affected employees." 29 U.S. C. § 2102(a)(1). An employer who violates the notice provisions is liable for penalties by way of a civil action that may be brought "in any district court of the United States for any district in which the violation is alleged to have occurred, or in which the employer transacts business." § 2104(a)(5). The class of plaintiffs includes aggrieved employees (or their unions, as representatives), ibid., who may collect "back pay for each day of violation," § 2104(a)(1)(A), "up to a maximum of 60 days," § 2104(a)(1). While the terms of the statute are specific on 32 other matters, WARN does not provide a limitations period for the civil actions authorized by § 2104. In Crown Cork, respondent United Steelworkers of America brought a WARN claim in Federal District Court in Pennsylvania, charging Crown Cork & Seal Co., Inc., with laying off 85 employees at its Perry, Georgia, plant in September 1991, without giving the required 60-day notice. Crown Cork moved for summary judgment, claiming that the statute of limitations had run. The District Court denied the motion, holding the source of the limitations period for WARN suits to be Pennsylvania state law and the union's suit timely under any of the arguably applicable state statutes. 833 F. Supp. 467 (ED Pa. 1993). The District Court nevertheless certified the question of the limitations period for immediate interlocutory appeal under 28 U.S. C. § 1292. The North Star respondents are former, nonunion employees of petitioner North Star Steel Company who filed a WARN claim against the company (also in a Federal District Court in Pennsylvania) alleging that the company laid off 270 workers at a Pennsylvania plant without giving the 60-day advance notice. Like Crown Cork, and for like reasons, North Star also moved for summary judgment. But North Star was successful, the District Court holding the suit barred under the 6-month limitations period for unfair labor practice claims borrowed from the National Labor Relations Act (NLRA), 49 Stat. 449, 29 U.S. C. § 160(b), a statute believed by the court to be "more analogous" to WARN than anything in state law. 838 F. Supp. 970, 974 (MD Pa. 1993). The United States Court of Appeals for the Third Circuit consolidated the cases and held that a period of limitations for WARN should be borrowed from state, not federal, law, reversing in North Star and affirming in Crown Cork. 32 F.3d 53 (1994). Like the District Court in Crown Cork, the Court of Appeals did not pick from among the several Pennsylvania statutes of limitations that might apply to 33 WARN, since none of them would have barred either of the actions before it. The Third Circuit's decision deepened a split among the Courts of Appeals on the issue of WARN's limitations period. See United Paperworkers Int'l Union v. Specialty Paperboard, Inc., 999 F.2d 51 (CA2 1993) (applying state-law limitations period); Halkias v. General Dynamics Corp., 31 F.3d 224 (CA5) (applying NLRA limitations period), rehearing en banc granted, 9 IER Cases 1754 (CA5 1994); United Mine Workers of America v. Peabody Coal Co., 38 F.3d 850 (CA6 1994) (same). We granted certiorari to resolve it, 513 U.S. 1072 (1995), and now affirm. II A A look at this Court's docket in recent years will show how often federal statutes fail to provide any limitations period for the causes of action they create, leaving courts to borrow a period, generally from state law, to limit these claims. See, e. g., Reed v. Transportation Union, 488 U.S. 319 (1989) (claims under § 101(a)(2) of the Labor-Management Reporting and Disclosure Act of 1959, 73 Stat. 522, 29 U.S. C. § 411(a)(2), governed by state personal injury statutes); Agency Holding Corp. v. Malley-Duff & Associates, Inc., 483 U.S. 143 (1987) (civil actions under Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S. C. § 1964, governed by 4-year statute of limitations of the Clayton Act, 69 Stat. 283, as amended, 15 U.S. C. § 15b); Wilson v. Garcia, 471 U.S. 261 (1985) (civil rights claims under 42 U.S. C. § 1983 governed by state statutes of limitations for personal injury actions); DelCostello v. Teamsters, 462 U.S. 151 (1983) (hybrid suit by employee against employer for breach of a collective-bargaining agreement and against union for breach of a duty of fair representation governed by NLRA limitations period). Although these examples show borrowing from federal law as well as state, our practice has left no 34 doubt about the lender of first resort. Since 1830, "state statutes have repeatedly supplied the periods of limitations for federal causes of action" when the federal legislation made no provision, Automobile Workers v. Hoosier Cardinal Corp., 383 U.S. 696, 703-704 (1966), and in seeking the right state rule to apply, courts look to the state statute "`most closely analogous' " to the federal Act in need, Reed, supra, at 323, quoting DelCostello, supra, at 158. Because this penchant to borrow from analogous state law is not only "longstanding," Agency Holding Corp., supra, at 147, but "settled," Wilson, supra, at 266, "it is not only appropriate but also realistic to presume that Congress was thoroughly familiar with [our] precedents . . . and that it expect[s] its enactment[s] to be interpreted in conformity with them," Cannon v. University of Chicago, 441 U.S. 677, 699 (1979). See Agency Holding Corp., supra, at 147.[] There is, of course, a secondary lender, for we have recognized "a closely circumscribed . . . [and] narrow exception to the general rule," Reed, supra, at 324, based on the common sense that Congress would not wish courts to apply a limitations period that would only stymie the policies underlying the federal cause of action. So, when the state limitations periods with any claim of relevance would "`frustrate or interfere with the implementation of national policies,' " DelCostello, supra, at 161, quoting Occidental Life Ins. Co. of Cal. v. EEOC, 432 U.S. 355, 367 (1977), or be "at odds with the purpose or operation of federal substantive law," DelCostello, supra, at 161, we have looked for a period that might be provided by analogous federal law, more in harmony with the objectives of the immediate cause of action. See, e. g., Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350, 362 (1991); Agency Holding Corp., supra, at 35 153, 156; DelCostello, supra, at 171-172. But the reference to federal law is the exception, and we decline to follow a state limitations period "only `when a rule from elsewhere in federal law clearly provides a closer analogy than available state statutes, and when the federal policies at stake and the practicalities of litigation make that rule a significantly more appropriate vehicle for interstitial lawmaking.' " Reed, supra, at 324, quoting DelCostello, supra, at 172. B These cases fall squarely inside the rule, not the exception. The presumption that state law will be the source of a missing federal limitations period was already "longstanding," Agency Holding Corp., 483 U. S., at 147, when WARN was passed in 1988, justifying the assumption that Congress "intend[ed] by its silence that we borrow state law," ibid. Accordingly, the Court of Appeals identified four Pennsylvania statutes of limitations that might apply to WARN claims: the 2-year period for enforcing civil penalties generally, Pa. Stat. Ann., Tit. 42, § 5524(5) (Purdon 1981 and 1994 Supp.); the 3-year period for claims under the Pennsylvania Wage Payment and Collection Law, Pa. Stat. Ann., Tit. 43, § 260.9a(g) (Purdon 1992); the 4-year period for breach of an implied contract, Pa. Stat. Ann., Tit. 42, § 5525(4) (Purdon 1981); and the six years under the residual statute of limitations, Pa. Stat. Ann., Tit. 42, § 5527 (Purdon 1981 and 1994 Supp.). See 32 F.3d, at 61. Since the complaints in both Crown Cork and North Star were timely even under the shortest of these, there is no need to go beyond the decision of the Court of Appeals to choose the best of four, and it is enough to say here that none of these potentially applicable statutes would be "at odds" with WARN's "purpose or operation," or "`frustrate or interfere with' " the intent behind it. DelCostello, 462 U. S., at 161. The contrast with DelCostello is clear. There the Court declined to borrow state limitations periods for so-called 36 "hybrid" claims brought by an employee against both his employer and his union, for the reason that the state-law candidates "typically provide[d] very short times" for suit (generally 90 days) and thus "fail[ed] to provide an aggrieved employee with a satisfactory opportunity to vindicate his rights." Id., at 166, and n. 15. Here, the shortest of the arguably usable state periods, however, is two years, which is not short enough to frustrate an employee seeking relief under WARN. At the other end, even the longest of the periods, six years, is not long enough to frustrate the interest in "a relatively rapid disposition of labor disputes." See Automobile Workers, supra, at 707 (borrowing a 6-year state limitations period for claims brought under § 301 of the Labor-Management Relations Act). We do not take petitioners to disagree seriously, for the heart of their argument is not that the state periods are too long or too short. They submit instead that, if we look to state law, WARN litigation presents undue risks of forum shopping, such that we ought to pick a uniform federal rule for all claims (with the NLRA, and its 6-month limitations period for unfair labor practices claims, 29 U.S. C. § 160(b), being the federal Act most analogous to WARN). But even taking petitioners on their own terms, they make no case for choosing the exception over the rule. They are right, of course, that the practice of adopting state statutes of limitations for federal causes of action can result in different limitations periods in different States for the same federal action, and correct that some plaintiffs will canvass the variations and shop around for a forum. But these are just the costs of the rule itself, and nothing about WARN makes them exorbitant. It is, indeed, true that "practicalities of litigation" influenced our rationale for adopting a uniform federal rule for civil actions under RICO. Agency Holding Corp., supra, at 153. But WARN's obligations are triggered by a "plant closing" or a "mass layoff" at a "single site of employment," *37 29 U.S. C. §§ 2101(a)(2)(3), and so, unlike RICO violations, do not "commonly involve interstate transactions." Agency Holding Corp., 483 U. S., at 153. WARN thus fails to share the "multistate nature" of RICO, id., at 154, and is so relatively simple and narrow in its scope, see id., at 149 (listing the many categories of crimes that can be predicate acts for a RICO violation), that "no [comparable] practicalities of litigation compel us to search beyond state law for a more analogous statute of limitations," Reed, 488 U. S., at 327. Since, then, a state counterpart provides a limitations period without frustrating consequences, it is simply beside the point that even a perfectly good federal analogue exists. The judgment of the Court of Appeals is Affirmed. Justice Scalia, concurring in the judgment.	The Worker Adjustment and Retraining Notification Act (WARN or Act), 29 U.S. C. 2101 et seq. obliges covered employers to give employees or their union 60 days notice of a plant closing or mass layoff. These consolidated cases raise the issue of the proper source of the limitations period for civil actions brought to enforce the Act. For actions brought in Pennsylvania, and generally, we hold it to be state law. I With some exceptions and conditions, WARN forbids an employer of 100 or more employees to "order a plant closing or mass layoff until the end of a 60-day period after the employer serves written notice of such an order." 29 U.S. C. 2102(a). The employer is supposed to notify, among others, "each affected employee" or "each representative of the affected employees." 29 U.S. C. 2102(a)(1). An employer who violates the notice provisions is liable for penalties by way of a civil action that may be brought "in any district court of the United States for any district in which the violation is alleged to have occurred, or in which the employer transacts business." 2104(a)(5). The class of plaintiffs includes aggrieved employees (or their unions, as representatives), who may collect "back pay for each day of violation," 2104(a)(1)(A), "up to a maximum of 60 days," 2104(a)(1). While the terms of the statute are specific on 32 other matters, WARN does not provide a limitations period for the civil actions authorized by 2104. In Crown Cork, respondent United Steelworkers of America brought a WARN claim in Federal District Court in Pennsylvania, charging Crown Cork & Seal Co., Inc., with laying off 85 employees at its Perry, Georgia, plant in September 1991, without giving the required 60-day notice. Crown Cork moved for summary judgment, claiming that the statute of limitations had run. The District Court denied the motion, holding the source of the limitations period for WARN suits to be Pennsylvania state law and the union's suit timely under any of the arguably applicable state statutes. The District Court nevertheless certified the question of the limitations period for immediate interlocutory appeal under 28 U.S. C. 1292. The North Star respondents are former, nonunion employees of petitioner North Star Steel Company who filed a WARN claim against the company (also in a Federal District Court in Pennsylvania) alleging that the company laid off 270 workers at a Pennsylvania plant without giving the 60-day advance notice. Like Crown Cork, and for like reasons, North Star also moved for summary judgment. But North Star was successful, the District Court holding the suit barred under the 6-month limitations period for unfair labor practice claims borrowed from the National Labor Relations Act (NLRA), 29 U.S. C. 160(b), a statute believed by the court to be "more analogous" to WARN than anything in state law. The United States Court of Appeals for the Third Circuit consolidated the cases and held that a period of limitations for WARN should be borrowed from state, not federal, law, reversing in North Star and affirming in Crown Cork. Like the District Court in Crown Cork, the Court of Appeals did not pick from among the several Pennsylvania statutes of limitations that might apply to 33 WARN, since none of them would have barred either of the actions before it. The Third Circuit's decision deepened a split among the Courts of Appeals on the issue of WARN's limitations period. See United Paperworkers Int'l ; (CA5) (applying NLRA limitations period), rehearing en banc granted, 9 IER Cases 1754 ; United Mine of We granted certiorari to resolve it, and now affirm. II A A look at this Court's docket in recent years will show how often federal statutes fail to provide any limitations period for the causes of action they create, leaving courts to borrow a period, generally from state law, to limit these claims. See, e. g., (claims under 101(a)(2) of the Labor-Management Reporting and Disclosure Act of 1959, 29 U.S. C. 411(a)(2), governed by state personal injury statutes); Agency Holding (civil actions under Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S. C. 1964, governed by 4-year statute of limitations of the Clayton Act, as amended, 15 U.S. C. 15b); (civil rights claims under 42 U.S. C. 1983 governed by state statutes of limitations for personal injury actions); Although these examples show borrowing from federal law as well as state, our practice has left no 34 doubt about the lender of first resort. Since 1830, "state statutes have repeatedly supplied the periods of limitations for federal causes of action" when the federal legislation made no provision, Automobile and in seeking the right state rule to apply, courts look to the state statute "`most closely analogous' " to the federal Act in need, quoting Because this penchant to borrow from analogous state law is not only "longstanding," Agency Holding but "settled," "it is not only appropriate but also realistic to presume that Congress was thoroughly familiar with [our] precedents and that it expect[s] its enactment[s] to be interpreted in conformity with them," See Agency Holding[] There is, of course, a secondary lender, for we have recognized "a closely circumscribed [and] narrow exception to the general rule," based on the common sense that Congress would not wish courts to apply a limitations period that would only stymie the policies underlying the federal cause of action. So, when the state limitations periods with any claim of relevance would "`frustrate or interfere with the implementation of national policies,' " quoting Occidental Life Ins. Co. of or be "at odds with the purpose or operation of federal substantive law," we have looked for a period that might be provided by analogous federal law, more in harmony with the objectives of the immediate cause of action. See, e. g., Lampf, Pleva, Lipkind, Prupis & ; Agency Holding at 35 153, 156; But the reference to federal law is the exception, and we decline to follow a state limitations period "only `when a rule from elsewhere in federal law clearly provides a closer analogy than available state statutes, and when the federal policies at stake and the practicalities of litigation make that rule a significantly more appropriate vehicle for interstitial lawmaking.' " quoting B These cases fall squarely inside the rule, not the exception. The presumption that state law will be the source of a missing federal limitations period was already "longstanding," Agency Holding 483 U. S., when WARN was passed in 1988, justifying the assumption that Congress "intend[ed] by its silence that we borrow state law," Accordingly, the Court of Appeals identified four Pennsylvania statutes of limitations that might apply to WARN claims: the 2-year period for enforcing civil penalties generally, Pa. Stat. Ann., Tit. 42, 5524(5) (Purdon 1981 and Supp.); the 3-year period for claims under the Pennsylvania Wage Payment and Collection Law, Pa. Stat. Ann., Tit. 43, 260.9a(g) (Purdon 1992); the 4-year period for breach of an implied contract, Pa. Stat. Ann., Tit. 42, 5525(4) (Purdon 1981); and the six years under the residual statute of limitations, Pa. Stat. Ann., Tit. 42, 5527 (Purdon 1981 and Supp.). See Since the complaints in both Crown Cork and North Star were timely even under the shortest of these, there is no need to go beyond the decision of the Court of Appeals to choose the best of four, and it is enough to say here that none of these potentially applicable statutes would be "at odds" with WARN's "purpose or operation," or "`frustrate or interfere with' " the intent behind it. 462 U. S., The contrast with is clear. There the Court declined to borrow state limitations periods for so-called 36 "hybrid" claims brought by an employee against both his employer and his union, for the reason that the state-law candidates "typically provide[d] very short times" for suit (generally 90 days) and thus "fail[ed] to provide an aggrieved employee with a satisfactory opportunity to vindicate his rights." and n. 15. Here, the shortest of the arguably usable state periods, however, is two years, which is not short enough to frustrate an employee seeking relief under WARN. At the other end, even the longest of the periods, six years, is not long enough to frustrate the interest in "a relatively rapid disposition of labor disputes." See Automobile (borrowing a 6-year state limitations period for claims brought under 301 of the Labor-Management Relations Act). We do not take petitioners to disagree seriously, for the heart of their argument is not that the state periods are too long or too short. They submit instead that, if we look to state law, WARN litigation presents undue risks of forum shopping, such that we ought to pick a uniform federal rule for all claims (with the NLRA, and its 6-month limitations period for unfair labor practices claims, 29 U.S. C. 160(b), being the federal Act most analogous to WARN). But even taking petitioners on their own terms, they make no case for choosing the exception over the rule. They are right, of course, that the practice of adopting state statutes of limitations for federal causes of action can result in different limitations periods in different States for the same federal action, and correct that some plaintiffs will canvass the variations and shop around for a forum. But these are just the costs of the rule itself, and nothing about WARN makes them exorbitant. It is, indeed, true that "practicalities of litigation" influenced our rationale for adopting a uniform federal rule for civil actions under RICO. Agency Holding But WARN's obligations are triggered by a "plant closing" or a "mass layoff" at a "single site of employment," *37 29 U.S. C. 2101(a)(2)(3), and so, unlike RICO violations, do not "commonly involve interstate transactions." Agency Holding 483 U. S., WARN thus fails to share the "multistate nature" of RICO, and is so relatively simple and narrow in its scope, see that "no [comparable] practicalities of litigation compel us to search beyond state law for a more analogous statute of limitations," Since, then, a state counterpart provides a limitations period without frustrating consequences, it is simply beside the point that even a perfectly good federal analogue exists. The judgment of the Court of Appeals is Affirmed. Justice Scalia, concurring in the judgment.	1,929
Justice Scalia	concurring	false	North Star Steel Co. v. Thomas	1995-05-30	null	https://www.courtlistener.com/opinion/117941/north-star-steel-co-v-thomas/	https://www.courtlistener.com/api/rest/v3/clusters/117941/	1,995	1994-063	1	9	0	I remain of the view that when Congress has not prescribed a limitations period to govern a cause of action that it has created, the Court should apply the appropriate state statute of limitations, or, if doing so would frustrate the purposes of the federal enactment, no limitations period at all. See Agency Holding Corp. v. Malley-Duff & Associates, Inc., 483 U.S. 143, 157-170 (1987) (Scalia, J., concurring in judgment); see also Reed v. Transportation Union, 488 U.S. 319, 334 (1989) (Scalia, J., concurring in judgment). The rule first announced in DelCostello v. Teamsters, 462 U.S. 151, 172 (1983), that a federal limitations period should be selected when it presents a "closer analogy" to the federal cause of action and is "significantly more appropriate," I find to be not only erroneous but unworkable. If the "closer analogy" part of this is to be taken seriously, the federal statute would end up applying in some States but not in others; and the "significantly more appropriate" part is meaningless, since in all honesty a uniform nationwide limitations period for a federal cause of action is always significantly more appropriate. *38 I have joined in applying to a so-called "implied" cause of action the limitations period contained in the federal statute out of which the cause of action had been judicially created. See Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350, 364-366 (1991) (Scalia, J., concurring in part and concurring in judgment). But the cause of action at issue here was created not by us, but by Congress. Accordingly, in my view, the appropriate state statute of limitations governs. Because none of the state statutes arguably applicable here would frustrate the purposes of the Worker Adjustment and Retraining Notification Act (WARN), 29 U.S. C. § 2101 et seq. , and because the WARN actions before us are timely under even the shortest of those statutes, I concur in the Court's judgment.	I remain of the view that when Congress has not prescribed a limitations period to govern a cause of action that it has created, the Court should apply the appropriate state statute of limitations, or, if doing so would frustrate the purposes of the federal enactment, no limitations period at all. See Agency Holding ; see also The rule first announced in that a federal limitations period should be selected when it presents a "closer analogy" to the federal cause of action and is "significantly more appropriate," I find to be not only erroneous but unworkable. If the "closer analogy" part of this is to be taken seriously, the federal statute would end up applying in some States but not in others; and the "significantly more appropriate" part is meaningless, since in all honesty a uniform nationwide limitations period for a federal cause of action is always significantly more appropriate. *38 I have joined in applying to a so-called "implied" cause of action the limitations period contained in the federal statute out of which the cause of action had been judicially created. See Lampf, Pleva, Lipkind, Prupis & But the cause of action at issue here was created not by us, but by Congress. Accordingly, in my view, the appropriate state statute of limitations governs. Because none of the state statutes arguably applicable here would frustrate the purposes of the Worker Adjustment and Retraining Notification Act (WARN), 29 U.S. C. 2101 et seq. and because the WARN actions before us are timely under even the shortest of those statutes, I concur in the Court's judgment.	1,930
Justice Stevens	majority	false	Arkansas Dept. of Health and Human Servs. v. Ahlborn	2006-05-01	null	https://www.courtlistener.com/opinion/145661/arkansas-dept-of-health-and-human-servs-v-ahlborn/	https://www.courtlistener.com/api/rest/v3/clusters/145661/	2,006	2005-050	2	9	0	When a Medicaid recipient in Arkansas obtains a tort settlement following payment of medical costs on her behalf by Medicaid, Arkansas law automatically imposes a lien on the settlement in an amount equal to Medicaid's costs. When that amount exceeds the portion of the settlement that represents medical costs, satisfaction of the State's lien requires payment out of proceeds meant to compensate the recipient for damages distinct from medical costslike pain and suffering, lost wages, and loss of future earnings. The Court of Appeals for the Eighth Circuit held that this statutory lien contravened federal law and was therefore unenforceable. Ahlborn v. Arkansas Dept. of Human Servs., 397 F.3d 620 (2005). Other courts have upheld similar lien provisions. See, e. g., Houghton v. Department of Health, 2002 UT 101, 57 P.3d 1067; Wilson v. Washington, 142 Wash. 2d 40, 10 P.3d 1061 (2000) (en banc). We granted certiorari to resolve the conflict, 545 U.S. 1165 (2005), and now affirm. I On January 2, 1996, respondent Heidi Ahlborn, then a 19-year-old college student and aspiring teacher, suffered severe 273 and permanent injuries as a result of a car accident. She was left brain damaged, unable to complete her college education, and incapable of pursuing her chosen career. Although she possessed a claim of uncertain value against the alleged tortfeasors who caused her injuries, Ahlborn's liquid assets were insufficient to pay for her medical care. Petitioner Arkansas Department of Health and Human Services (ADHS) [1] accordingly determined that she was eligible for medical assistance and paid providers $215,645.30 on her behalf under the State's Medicaid plan. ADHS required Ahlborn to complete a questionnaire about her accident, and sent her attorney periodic letters advising him about Medicaid outlays. These letters noted that, under Arkansas law, ADHS had a claim to reimbursement from "any settlement, judgment, or award" obtained by Ahlborn from "a third party who may be liable for" her injuries, and that no settlement "shall be satisfied without first giving [ADHS] notice and a reasonable opportunity to establish its interest."[2] ADHS has never asserted, however, that Ahlborn has a duty to reimburse it out of any other subsequently acquired assets or earnings. On April 11, 1997, Ahlborn filed suit against two alleged tortfeasors in Arkansas state court seeking compensation for the injuries she sustained in the January 1996 car accident. She claimed damages not only for past medical costs, but also for permanent physical injury; future medical expenses; past and future pain, suffering, and mental anguish; past loss of earnings and working time; and permanent impairment of the ability to earn in the future. ADHS was neither named as a party nor formally notified of the suit. Ahlborn's counsel did, however, keep ADHS informed of details concerning insurance coverage as they became known during the litigation. 274 In February 1998, ADHS intervened in Ahlborn's lawsuit to assert a lien on the proceeds of any third-party recovery Ahlborn might obtain. In October 1998, ADHS asked Ahlborn's counsel to notify the agency if there was a hearing in the case. No hearing apparently occurred, and the case was settled out of court sometime in 2002 for a total of $550,000. The parties did not allocate the settlement between categories of damages. ADHS did not participate or ask to participate in settlement negotiations. Nor did it seek to reopen the judgment after the case had been dismissed. ADHS did, however, assert a lien against the settlement proceeds in the amount of $215,645.30the total cost of payments made by ADHS for Ahlborn's care. On September 30, 2002, Ahlborn filed this action in the United States District Court for the Eastern District of Arkansas seeking a declaration that the lien violated the federal Medicaid laws insofar as its satisfaction would require depletion of compensation for injuries other than past medical expenses. To facilitate the District Court's resolution of the legal questions presented, the parties stipulated that Ahlborn's entire claim was reasonably valued at $3,040,708.12; that the settlement amounted to approximately one-sixth of that sum; and that, if Ahlborn's construction of federal law was correct, ADHS would be entitled to only the portion of the settlement ($35,581.47) that constituted reimbursement for medical payments made. See App. 17-20. Ruling on cross-motions for summary judgment, the District Court held that under Arkansas law, which it concluded did not conflict with federal law, Ahlborn had assigned to ADHS her right to any recovery from the third-party tortfeasors to the full extent of Medicaid's payments for her benefit. Accordingly, ADHS was entitled to a lien in the amount of $215,645.30. 275 The Eighth Circuit reversed. It held that ADHS was entitled only to that portion of the judgment that represented payments for medical care. For the reasons that follow, we affirm. II The crux of the parties' dispute lies in their competing constructions of the federal Medicaid laws. The Medicaid program, which provides joint federal and state funding of medical care for individuals who cannot afford to pay their own medical costs, was launched in 1965 with the enactment of Title XIX of the Social Security Act (SSA), as added, 79 Stat. 343, 42 U.S. C. § 1396 et seq. (2000 ed. and Supp. III). Its administration is entrusted to the Secretary of Health and Human Services (HHS), who in turn exercises his authority through the Centers for Medicare and Medicaid Services (CMS).[3] States are not required to participate in Medicaid, but all of them do. The program is a cooperative one; the Federal Government pays between 50% and 83% of the costs the State incurs for patient care,[4] and, in return, the State pays its portion of the costs and complies with certain statutory requirements for making eligibility determinations, collecting and maintaining information, and administering the program. See § 1396a. One such requirement is that the state agency in charge of Medicaid (here, ADHS) "take all reasonable measures to ascertain the legal liability of third parties . . . to pay for care and services available under the plan." § 1396a(a)(25)(A) 276 (2000 ed.).[5] The agency's obligation extends beyond mere identification, however; "in any case where such a legal liability is found to exist after medical assistance has been made available on behalf of the individual and where the amount of reimbursement the State can reasonably expect to recover exceeds the costs of such recovery, the State or local agency will seek reimbursement for such assistance to the extent of such legal liability." § 1396a(a)(25)(B). To facilitate its reimbursement from liable third parties, the State must, "to the extent that payment has been made under the State plan for medical assistance in any case where a third party has a legal liability to make payment for such assistance, [have] in effect laws under which, to the extent that payment has been made under the State plan for medical assistance for health care items or services furnished to an individual, the State is considered to have acquired the rights of such individual to payment by any other party for such health care items or services." § 1396a(a)(25)(H). The obligation to enact assignment laws is reiterated in another provision of the SSA, which reads as follows: "(a) For the purpose of assisting in the collection of medical support payments and other payments for medical care owed to recipients of medical assistance under the State plan approved under this subchapter, a State plan for medical assistance shall "(1) provide that, as a condition of eligibility for medical assistance under the State plan to an individual who 277 has the legal capacity to execute an assignment for himself, the individual is required "(A) to assign the State any rights . . . to support (specified as support for the purpose of medical care by a court or administrative order) and to payment for medical care from any third party; "(B) to cooperate with the State . . . in obtaining support and payments (described in subparagraph (A)) for himself . . .; and "(C) to cooperate with the State in identifying, and providing information to assist the State in pursuing, any third party who may be liable to pay for care and services available under the plan . . . ." § 1396k(a). Finally, "any amount collected by the State under an assignment made" as described above "shall be retained by the State as is necessary to reimburse it for medical assistance payments made on behalf of" the Medicaid recipient. § 1396k(b). "[T]he remainder of such amount collected shall be paid" to the recipient. Ibid. Acting pursuant to its understanding of these third-party liability provisions, the State of Arkansas passed laws that purport to allow both ADHS and the Medicaid recipient, either independently or together, to recover "the cost of benefits" from third parties. Ark. Code Ann. §§ 20-77-301 through XX-XX-XXX (2001). Initially, "[a]s a condition of eligibility" for Medicaid, an applicant "shall automatically assign his or her right to any settlement, judgment, or award which may be obtained against any third party to [ADHS] to the full extent of any amount which may be paid by Medicaid for the benefit of the applicant." § 20-77-307(a). Accordingly, "[w]hen medical assistance benefits are provided" to the recipient "because of injury, disease, or disability for which another person is liable," ADHS "shall have a right to recover from the person the cost of benefits so provided." § 20-77-301(a).[6]278 ADHS' suit "shall" not, however, "be a bar to any action upon the claim or cause of action of the recipient." § 20-77-301(b). Indeed, the statute envisions that the recipient will sometimes sue together with ADHS, see § 20-77-303, or even alone. If the latter, the assignment described in § 20-77-307(a) "shall be considered a statutory lien on any settlement, judgment, or award received . . . from a third party." § 20-77-307(c); see also § 20-77-302(a) ("When an action or claim is brought by a medical assistance recipient. . ., any settlement, judgment, or award obtained is subject to the division's claim for reimbursement of the benefits provided to the recipient under the medical assistance program").[7] The State, through this statute, claims an entitlement to more than just that portion of a judgment or settlement that represents payment for medical expenses. It claims a right to recover the entirety of the costs it paid on the Medicaid recipient's behalf. Accordingly, if, for example, a recipient sues alone and settles her entire action against a third-party tortfeasor for $20,000, and ADHS has paid that amount or more to medical providers on her behalf, ADHS gets the whole settlement and the recipient is left with nothing. This is so even when the parties to the settlement allocate damages between medical costs, on the one hand, and other injuries like lost wages, on the other. The same rule also 279 would apply, it seems, if the recovery were the result not of a settlement but of a jury verdict. In that case, under the Arkansas statute, ADHS could recover the full $20,000 in the face of a jury allocation of, say, only $10,000 for medical expenses.[8] That this is what the Arkansas statute requires has been confirmed by the State's Supreme Court. In Arkansas Dept. of Human Servs. v. Ferrel, 336 Ark. 297, 984 S.W.2d 807 (1999), the court refused to endorse an equitable, nontextual interpretation of the statute. Rejecting a Medicaid recipient's argument that he ought to retain some of a settlement that was insufficient to cover both his and Medicaid's expenses, the court explained: "Given the clear, unambiguous language of the statute, it is apparent that the legislature intended that ADHS's ability to recoup Medicaid payments from third parties or recipients not be restricted by equitable subrogation principles such as the `made whole' rule stated in [Franklin v. Healthsource of Arkansas, 328 Ark. 163, 942 S.W.2d 837 (1997)]. By creating an automatic legal assignment which expressly becomes a statutory lien, [Ark. Code Ann. § 20-77-307 (1991)] makes an unequivocal statement that the ADHS's ability to recover Medicaid payments from insurance settlements, if it so chooses, is superior to that of the recipient even when the settlement does not pay all the recipient's medical costs." Id., at 308, 984 S.W.2d, at 811. Accordingly, the Arkansas statute, if enforceable against Ahlborn, authorizes imposition of a lien on her settlement proceeds in the amount of $215,645.30. Ahlborn's argument before the District Court, the Eighth Circuit, and this Court 280 has been that Arkansas law goes too far. We agree. Arkansas' statute finds no support in the federal third-party liability provisions, and in fact squarely conflicts with the anti-lien provision of the federal Medicaid laws. III We must decide whether ADHS can lay claim to more than the portion of Ahlborn's settlement that represents medical expenses.[9] The text of the federal third-party liability provisions suggests not; it focuses on recovery of payments for medical care. Medicaid recipients must, as a condition of eligibility, "assign the State any rights . . . to payment for medical care from any third party," 42 U.S. C. § 1396k(a)(1)(A) (emphasis added), not rights to payment for, for example, lost wages. The other statutory language that ADHS relies upon is not to the contrary; indeed, it reinforces the limitation implicit in the assignment provision. First, ADHS points to § 1396a(a)(25)(B)'s requirement that States "seek reimbursement for [medical] assistance to the extent of such legal liability" (emphasis added) and suggests that this means that the entirety of a recipient's settlement is fair game. In fact, as is evident from the context of the emphasized language, "such legal liability" refers to "the legal liability of third parties . . . to pay for care and services available under the plan." § 1396a(a)(25)(A) (emphasis added). Here, the tortfeasor has accepted liability for only one-sixth of the recipient's overall damages, and ADHS has stipulated that only $35,581.47 of that sum represents compensation for medical expenses. Under the circumstances, 281 the relevant "liability" extends no further than that amount.[10] Second, ADHS argues that the language of § 1396a(a) (25)(H) favors its view that it can demand full reimbursement of its costs from Ahlborn's settlement. That provision, which echoes the requirement of a mandatory assignment of rights in § 1396k(a), says that the State must have in effect laws that, "to the extent that payment has been made under the State plan for medical assistance for health care items or services furnished to an individual," give the State the right to recover from liable third parties. This must mean, says ADHS, that the agency's recovery is limited only by the amount it paid out on the recipient's behalf and not by the third-party tortfeasor's particular liability for medical expenses. But that reading ignores the rest of the provision, which makes clear that the State must be assigned "the rights of [the recipient] to payment by any other party for such health care items or services." § 1396a(a)(25)(H) (emphasis added). Again, the statute does not sanction an assignment of rights to payment for anything other than medical expensesnot lost wages, not pain and suffering, not an inheritance. Finally, ADHS points to the provision requiring that, where the State actively pursues recovery from the third party, Medicaid be reimbursed fully from "any amount collected by the State under an assignment" before "the remainder of such amount collected" is remitted to the recipient. § 1396k(b). In ADHS' view, this shows that the State must be paid in full from any settlement. See Brief for Petitioners 13. But, even assuming the provision applies in cases where the State does not actively participate in the litigation, ADHS' conclusion rests on a false premise: The 282 "amount recovered . . . under an assignment" is not, as ADHS assumes, the entire settlement; as explained above, under the federal statute the State's assigned rights extend only to recovery of payments for medical care. Accordingly, what § 1396k(b) requires is that the State be paid first out of any damages representing payments for medical care before the recipient can recover any of her own costs for medical care.[11] At the very least, then, the federal third-party liability provisions require an assignment of no more than the right to recover that portion of a settlement that represents payments for medical care.[12] They did not mandate the enactment of the Arkansas scheme that we have described. 283 IV If there were no other relevant provisions in the federal statute, the State might plausibly argue that federal law supplied a recovery "floor" upon which States were free to build. In fact, though, the federal statute places express limits on the State's powers to pursue recovery of funds it paid on the recipient's behalf. These limitations are contained in 42 U.S. C. §§ 1396a(a)(18) and 1396p. Section 1396a(a)(18) requires that a state Medicaid plan comply with § 1396p, which in turn prohibits States (except in circumstances not relevant here) from placing liens against, or seeking recovery of benefits paid from, a Medicaid recipient: "(a) Imposition of lien against property of an individual on account of medical assistance rendered to him under a State plan "(1) No lien may be imposed against the property of any individual prior to his death on account of medical assistance paid or to be paid on his behalf under the State plan, except "(A) pursuant to the judgment of a court on account of benefits incorrectly paid on behalf of such individual, or "(B) [in certain circumstances not relevant here] . . . . . "(b) Adjustment or recovery of medical assistance correctly paid under a State plan "(1) No adjustment or recovery of any medical assistance correctly paid on behalf of an individual under the 284 State plan may be made, except [in circumstances not relevant here]." § 1396p. Read literally and in isolation, the anti-lien prohibition contained in § 1396p(a) would appear to ban even a lien on that portion of the settlement proceeds that represents payments for medical care.[13] Ahlborn does not ask us to go so far, though; she assumes that the State's lien is consistent with federal law insofar as it encumbers proceeds designated as payments for medical care. Her argument, rather, is that the anti-lien provision precludes attachment or encumbrance of the remainder of the settlement. We agree. There is no question that the State can require an assignment of the right, or chose in action, to receive payments for medical care. So much is expressly provided for by §§ 1396a(a)(25) and 1396k(a). And we assume, as do the parties, that the State can also demand as a condition of Medicaid eligibility that the recipient "assign" in advance any payments that may constitute reimbursement for medical costs. To the extent that the forced assignment is expressly authorized by the terms of §§ 1396a(a)(25) and 1396k(a), it is an exception to the anti-lien provision. See Washington State Dept. of Social and Health Servs. v. Guardianship Estate of Keffeler, 537 U.S. 371, 383-385, and n. 7 (2003). But that does not mean that the State can force an assignment of, or place a lien on, any other portion of Ahlborn's property. As explained above, the exception carved out by 285 §§ 1396a(a)(25) and 1396k(a) is limited to payments for medical care. Beyond that, the anti-lien provision applies. ADHS tries to avoid the anti-lien provision by characterizing the settlement proceeds as not Ahlborn's "property."[14] Its argument appears to be that the automatic assignment effected by the Arkansas statute rendered the proceeds the property of the State.[15] See Brief for Petitioners 31 ("[U]nder Arkansas law, the lien does not attach to the recipient's `property' because it attaches only to those proceeds already assigned to the Department as a condition of Medicaid eligibility"). That argument fails for two reasons. First, ADHS insists that Ahlborn at all times until judgment retained her entire chose in actiona right that included her claim for medical damages. The statutory lien, then, cannot have attached until the proceeds materialized. That much is clear from the text of the Arkansas statute, which says that the "assignment shall be considered a statutory lien on any settlement . . . received by the recipient from a third party." Ark. Code Ann. § 20-77-307(c) (2001) (emphasis added). The settlement is not "received" until the chose in action has been reduced to proceeds in Ahlborn's possession. Accordingly, the assertion that any of the proceeds belonged to the State all along lacks merit. Second, the State's argument that Ahlborn lost her property rights in the proceeds the instant she applied for medical assistance is inconsistent with the creation of a statutory 286 lien on those proceeds. Why, after all, would ADHS need a lien on its own property? A lien typically is imposed on the property of another for payment of a debt owed by that other. See Black's Law Dictionary 922 (6th ed. 1990). Nothing in the Arkansas statute defines the term otherwise. That the lien is also called an "assignment" does not alter the analysis. The terms that Arkansas employs to describe the mechanism by which it lays claim to the settlement proceeds do not, by themselves, tell us whether the statute violates the anti-lien provision. See United States v. Craft, 535 U.S. 274, 279 (2002); Drye v. United States, 528 U.S. 49, 58-61 (1999). Although denominated an "assignment," the effect of the statute here was not to divest Ahlborn of all her property interest; instead, Ahlborn retained the right to sue for medical care payments, and the State asserted a right to the fruits of that suit once they materialized. In effect, and as at least some of the statutory language recognizes, Arkansas has imposed a lien on Ahlborn's property.[16] Since none of the federal third-party liability provisions excepts that lien from operation of the anti-lien provision, its imposition violates federal law. 287 V ADHS and its amici urge, however, that even if a lien on more than medical damages would violate federal law in some cases, a rule permitting such a lien ought to apply here either because Ahlborn breached her duty to "cooperate" with ADHS or because there is an inherent danger of manipulation in cases where the parties to a tort case settle without judicial oversight or input from the State. Neither argument is persuasive. The United States proposes a default rule of full reimbursement whenever the recipient breaches her duty to "cooperate," and asserts that Ahlborn in fact breached that duty.[17] But, even if the Government's allegations of obstruction were supported by the record, its conception of the duty to cooperate strays far beyond the text of the statute and the relevant regulations. The duty to cooperate arises principally, if not exclusively, in proceedings initiated by the State to recover from third parties. See 42 U.S. C. § 1396k(a)(1)(C) (recipients must "cooperate with the State in identifying . . . and providing information to assist the State in pursuing" third parties). Most of the accompanying federal regulations simply echo this basic duty; all they add is that the recipient must "[p]ay to the agency any support or medical care funds received that are covered by the assignment of rights." 42 CFR § 433.147(b)(4) (2005). In any event, the aspersions the United States casts upon Ahlborn are entirely unsupported; all the record reveals is that ADHS, despite having intervened in the lawsuit and 288 asked to be apprised of any hearings, neither asked to be nor was involved in the settlement negotiations. Whatever the bounds of the duty to cooperate, there is no evidence that it was breached here. ADHS' and the United States' alternative argument that a rule of full reimbursement is needed generally to avoid the risk of settlement manipulation is more colorable, but ultimately also unpersuasive. The issue is not, of course, squarely presented here; ADHS has stipulated that only $35,581.47 of Ahlborn's settlement proceeds properly are designated as payments for medical costs. Even in the absence of such a postsettlement agreement, though, the risk that parties to a tort suit will allocate away the State's interest can be avoided either by obtaining the State's advance agreement to an allocation or, if necessary, by submitting the matter to a court for decision.[18] For just as there are risks in underestimating the value of readily calculable damages in settlement negotiations, so also is there a countervailing concern that a rule of absolute priority might preclude settlement in a large number of cases, and be unfair to the recipient in others.[19] 289 VI Finally, ADHS contends that the Court of Appeals' decision below accords insufficient weight to two decisions by the Departmental Appeals Board of HHS (Board) rejecting appeals by the States of California and Washington from denial of reimbursement for costs those States paid on behalf of Medicaid recipients who had settled tort claims. See App. to Pet. for Cert. 45-67 (reproducing In re Washington State Dept. of Social & Health Servs., Dec. No. 1561, 1996 WL 157123 (HHS Dept. App. Bd., Feb. 7, 1996)); App. to Pet. for Cert. 68-86 (reproducing In re California Dept. of Health Servs., Dec. No. 1504, 1995 WL 66334 (HHS Dept. App. Bd., Jan. 5, 1995)). Because the opinions in those cases address a different question from the one posed here, make no mention of the anti-lien provision, and, in any event, rest on a questionable construction of the federal third-party liability provisions, we conclude that they do not control our analysis. Normally, if a State recovers from a third party the cost of Medicaid benefits paid on behalf of a recipient, the Federal Government owes the State no reimbursement, and any funds already paid by the Federal Government must be returned. See 42 CFR § 433.140(a)(2) (2005) (federal financial participation "is not available in Medicaid payments if . . . [t]he agency received reimbursement from a liable third party"); § 433.140(c). Washington and California both had adopted schemes according to which the State refrained from claiming full reimbursement from tort settlements and instead took only a portion of each settlement. (In California, the recipient typically could keep at least 50% of her settlement, see App. to Pet. for Cert. 72; in Washington, the proportion varied from case to case, see id., at 48-51.) Each scheme resulted in the State's having to pay a portion of the recipient's medical costsa portion for which the State sought partial reimbursement from the Federal Government. CMS (then called HCFA) denied this partial reimbursement 290 on the ground that the States had an absolute duty to seek full payment of medical expenses from third-party tortfeasors. The Board upheld CMS' determinations. In California's appeal, which came first, the Board concluded that the State's duty to seek recovery of benefits "from available third party sources to the fullest extent possible" included demanding full reimbursement from the entire proceeds of a Medicaid recipient's tort settlement. Id., at 76. The Board acknowledged that § 1396k(a) "refers to assignment only of `payment for medical care,'" but thought that "the statutory scheme as a whole contemplates that the actual recovery might be greater and, if it is, that Medicaid should be paid first." Ibid. The Board gave two other reasons for siding with CMS: First, the legislative history of the third-party liability evinced a congressional intent that "the Medicaid program . . . be reimbursed from available third party sources to the fullest extent possible," ibid.; and, second, California had long been on notice that it would not be reimbursed for any shortfall resulting from failure to fully recoup Medicaid's costs from tort settlements, see id., at 77. The Board also opined that the State could not escape its duty to seek full reimbursement by relying on the Medicaid recipient's efforts in litigating her claims. See id., at 79-80. Finally, responding to the State's argument that its scheme gave Medicaid recipients incentives to sue thirdparty tortfeasors and thus resulted in both greater recovery and lower costs for the State, the Board observed that "a state is free to allow recipients to retain the state's share" of any recovery, so long as it does not compromise the Federal Government's share. Id., at 85. The Board reached the same conclusion, by the same means, in the Washington case. See id., at 53-64. Neither of these adjudications compels us to conclude that Arkansas' statutory lien comports with federal law. First, the Board's rulings address a different question from the one 291 presented here. The Board was concerned with the Federal Government's obligation to reimburse States that had, in its view, failed to seek full recovery of Medicaid's costs and had instead relied on recipients to act as private attorneys general. The Board neither discussed nor even so much as cited the federal anti-lien provision. Second, the Board's acknowledgment that the assignment of rights required by § 1396k(a) is limited to payments for medical care only reinforces the clarity of the statutory language. Moreover, its resort to "the statutory scheme as a whole" as justification for muddying that clarity is nowhere explained. Given that the only statutory provisions CMS relied on are §§ 1396a(a)(25), 1396k(a), and 1396k(b), see id., at 75-76; id., at 54-55, and given the Board's concession that the first two of these limit the State's assignment to payments for medical care, the "statutory scheme" must mean § 1396k(b). But that provision does not authorize the State to demand reimbursement from portions of the settlement allocated or allocable to nonmedical damages; instead, it gives the State a priority disbursement from the medical expenses portion alone. See supra, at 282. In fact, in its adjudication in the Washington case, the Board conceded as much: "[CMS] may require a state to assert a collection priority over funds obtained by Medicaid recipients in [thirdparty liability] suits even though the distribution methodology set forth in section [1396k(b)] refers only to payments collected pursuant to assignments for medical care." App. to Pet. for Cert. 54 (emphasis added). The Board's reasoning therefore is internally inconsistent. Third, the Board's reliance on legislative history is misplaced. The Board properly observed that Congress, in crafting the Medicaid legislation, intended that Medicaid be a "payer of last resort." S. Rep. No. 99-146, p. 313 (1985). That does not mean, however, that Congress meant to authorize States to seek reimbursement from Medicaid recipients themselves; in fact, with the possible exception of a lien 292 on payments for medical care, the statute expressly prohibits liens against the property of Medicaid beneficiaries. See 42 U.S. C. § 1396p(a). We recognize that Congress has delegated "broad regulatory authority to the Secretary [of HHS] in the Medicaid area," Wisconsin Dept. of Health and Family Servs. v. Blumer, 534 U.S. 473, 496, n. 13 (2002), and that agency adjudications typically warrant deference. Here, however, the Board's reasoning couples internal inconsistency with a conscious disregard for the statutory text. Under these circumstances, we decline to treat the agency's reasoning as controlling. VII Federal Medicaid law does not authorize ADHS to assert a lien on Ahlborn's settlement in an amount exceeding $35,581.47, and the federal anti-lien provision affirmatively prohibits it from doing so. Arkansas' third-party liability provisions are unenforceable insofar as they compel a different conclusion. The judgment of the Court of Appeals is affirmed. It is so ordered.	When a Medicaid recipient in Arkansas obtains a tort settlement following payment of medical costs on her behalf by Medicaid, Arkansas law automatically imposes a lien on the settlement in an amount equal to Medicaid's costs. When that amount exceeds the portion of the settlement that represents medical costs, satisfaction of the State's lien requires payment out of proceeds meant to compensate the recipient for damages distinct from medical costslike pain and suffering, lost wages, and loss of future earnings. The Court of Appeals for the Eighth Circuit held that this statutory lien contravened federal law and was therefore unenforceable. Other courts have upheld similar lien provisions. See, e. g., We granted certiorari to resolve the conflict, and now affirm. I On January 2, respondent Heidi Ahlborn, then a 19-year-old college student and aspiring teacher, suffered severe 273 and permanent injuries as a result of a car accident. She was left brain damaged, unable to complete her college education, and incapable of pursuing her chosen career. Although she possessed a claim of uncertain value against the alleged tortfeasors who caused her injuries, Ahlborn's liquid assets were insufficient to pay for her medical care. Petitioner Arkansas Department of Health and Human Services (ADHS) [1] accordingly determined that she was eligible for medical assistance and paid providers $215,645.30 on her behalf under the State's Medicaid plan. ADHS required Ahlborn to complete a questionnaire about her accident, and sent her attorney periodic letters advising him about Medicaid outlays. These letters noted that, under Arkansas law, ADHS had a claim to reimbursement from "any settlement, judgment, or award" obtained by Ahlborn from "a third party who may be liable for" her injuries, and that no settlement "shall be satisfied without first giving [ADHS] notice and a reasonable opportunity to establish its interest."[2] ADHS has never asserted, however, that Ahlborn has a duty to reimburse it out of any other subsequently acquired assets or earnings. On April 11, Ahlborn filed suit against two alleged tortfeasors in Arkansas state court seeking compensation for the injuries she sustained in the January car accident. She claimed damages not only for past medical costs, but also for permanent physical injury; future medical expenses; past and future pain, suffering, and mental anguish; past loss of earnings and working time; and permanent impairment of the ability to earn in the future. ADHS was neither named as a party nor formally notified of the suit. Ahlborn's counsel did, however, keep ADHS informed of details concerning insurance coverage as they became known during the litigation. 274 In February 1998, ADHS intervened in Ahlborn's lawsuit to assert a lien on the proceeds of any third-party recovery Ahlborn might obtain. In October 1998, ADHS asked Ahlborn's counsel to notify the agency if there was a hearing in the case. No hearing apparently occurred, and the case was settled out of court sometime in 2002 for a total of $550,000. The parties did not allocate the settlement between categories of damages. ADHS did not participate or ask to participate in settlement negotiations. Nor did it seek to reopen the judgment after the case had been dismissed. ADHS did, however, assert a lien against the settlement proceeds in the amount of $215,645.30the total cost of payments made by ADHS for Ahlborn's care. On September 30, 2002, Ahlborn filed this action in the United States District Court for the Eastern District of Arkansas seeking a declaration that the lien violated the federal Medicaid laws insofar as its satisfaction would require depletion of compensation for injuries other than past medical expenses. To facilitate the District Court's resolution of the legal questions presented, the parties stipulated that Ahlborn's entire claim was reasonably valued at $3,040,708.12; that the settlement amounted to approximately one-sixth of that sum; and that, if Ahlborn's construction of federal law was correct, ADHS would be entitled to only the portion of the settlement ($35,581.47) that constituted reimbursement for medical payments made. See App. 17-20. Ruling on cross-motions for summary judgment, the District Court held that under Arkansas law, which it concluded did not conflict with federal law, Ahlborn had assigned to ADHS her right to any recovery from the third-party tortfeasors to the full extent of Medicaid's payments for her benefit. Accordingly, ADHS was entitled to a lien in the amount of $215,645.30. 275 The Eighth Circuit reversed. It held that ADHS was entitled only to that portion of the judgment that represented payments for medical care. For the reasons that follow, we affirm. II The crux of the parties' dispute lies in their competing constructions of the federal Medicaid laws. The Medicaid program, which provides joint federal and state funding of medical care for individuals who cannot afford to pay their own medical costs, was launched in 1965 with the enactment of Title XIX of the Social Security Act (SSA), as added, 42 U.S. C. 1396 et seq. ( ed. and Supp. III). Its administration is entrusted to the Secretary of Health and Human Services (HHS), who in turn exercises his authority through the Centers for Medicare and Medicaid Services (CMS).[3] States are not required to participate in Medicaid, but all of them do. The program is a cooperative one; the Federal Government pays between 50% and 83% of the costs the State incurs for patient care,[4] and, in return, the State pays its portion of the costs and complies with certain statutory requirements for making eligibility determinations, collecting and maintaining information, and administering the program. See 1396a. One such requirement is that the state agency in charge of Medicaid (here, ADHS) "take all reasonable measures to ascertain the legal liability of third parties to pay for care and services available under the plan." 1396a(a)(25)(A) 276 ( ed.).[5] The agency's obligation extends beyond mere identification, however; "in any case where such a legal liability is found to exist after medical assistance has been made available on behalf of the individual and where the amount of reimbursement the State can reasonably expect to recover exceeds the costs of such recovery, the State or local agency will seek reimbursement for such assistance to the extent of such legal liability." 1396a(a)(25)(B). To facilitate its reimbursement from liable third parties, the State must, "to the extent that payment has been made under the State plan for medical assistance in any case where a third party has a legal liability to make payment for such assistance, [have] in effect laws under which, to the extent that payment has been made under the State plan for medical assistance for health care items or services furnished to an individual, the State is considered to have acquired the rights of such individual to payment by any other party for such health care items or services." 1396a(a)(25)(H). The obligation to enact assignment laws is reiterated in another provision of the SSA, which reads as follows: "(a) For the purpose of assisting in the collection of medical support payments and other payments for medical care owed to recipients of medical assistance under the State plan approved under this subchapter, a State plan for medical assistance shall "(1) provide that, as a condition of eligibility for medical assistance under the State plan to an individual who 277 has the legal capacity to execute an assignment for himself, the individual is required "(A) to assign the State any rights to support (specified as support for the purpose of medical care by a court or administrative order) and to payment for medical care from any third party; "(B) to cooperate with the State in obtaining support and payments (described in subparagraph (A)) for himself; and "(C) to cooperate with the State in identifying, and providing information to assist the State in pursuing, any third party who may be liable to pay for care and services available under the plan" 1396k(a). Finally, "any amount collected by the State under an assignment made" as described above "shall be retained by the State as is necessary to reimburse it for medical assistance payments made on behalf of" the Medicaid recipient. 1396k(b). "[T]he remainder of such amount collected shall be paid" to the recipient. Acting pursuant to its understanding of these third-party liability provisions, the State of Arkansas passed laws that purport to allow both ADHS and the Medicaid recipient, either independently or together, to recover "the cost of benefits" from third parties. Ark. Code Ann. 20-77-301 through XX-XX-XXX (2001). Initially, "[a]s a condition of eligibility" for Medicaid, an applicant "shall automatically assign his or her right to any settlement, judgment, or award which may be obtained against any third party to [ADHS] to the full extent of any amount which may be paid by Medicaid for the benefit of the applicant." 20-77-307(a). Accordingly, "[w]hen medical assistance benefits are provided" to the recipient "because of injury, disease, or disability for which another person is liable," ADHS "shall have a right to recover from the person the cost of benefits so provided." 20-77-301(a).[6]278 ADHS' suit "shall" not, however, "be a bar to any action upon the claim or cause of action of the recipient." 20-77-301(b). Indeed, the statute envisions that the recipient will sometimes sue together with ADHS, see 20-77-303, or even alone. If the latter, the assignment described in 20-77-307(a) "shall be considered a statutory lien on any settlement, judgment, or award received from a third party." 20-77-307(c); see also 20-77-302(a) ("When an action or claim is brought by a medical assistance recipient., any settlement, judgment, or award obtained is subject to the division's claim for reimbursement of the benefits provided to the recipient under the medical assistance program").[7] The State, through this statute, claims an entitlement to more than just that portion of a judgment or settlement that represents payment for medical expenses. It claims a right to recover the entirety of the costs it paid on the Medicaid recipient's behalf. Accordingly, if, for example, a recipient sues alone and settles her entire action against a third-party tortfeasor for $20,000, and ADHS has paid that amount or more to medical providers on her behalf, ADHS gets the whole settlement and the recipient is left with nothing. This is so even when the parties to the settlement allocate damages between medical costs, on the one hand, and other injuries like lost wages, on the other. The same rule also * would apply, it seems, if the recovery were the result not of a settlement but of a jury verdict. In that case, under the Arkansas statute, ADHS could recover the full $20,000 in the face of a jury allocation of, say, only $10,000 for medical expenses.[8] That this is what the Arkansas statute requires has been confirmed by the State's Supreme Court. In Arkansas Dept. of Human the court refused to endorse an equitable, nontextual interpretation of the statute. Rejecting a Medicaid recipient's argument that he ought to retain some of a settlement that was insufficient to cover both his and Medicaid's expenses, the court explained: "Given the clear, unambiguous language of the statute, it is apparent that the legislature intended that ADHS's ability to recoup Medicaid payments from third parties or recipients not be restricted by equitable subrogation principles such as the `made whole' rule stated in ]. By creating an automatic legal assignment which expressly becomes a statutory lien, [Ark. Code Ann. 20-77-307 (1991)] makes an unequivocal statement that the ADHS's ability to recover Medicaid payments from insurance settlements, if it so chooses, is superior to that of the recipient even when the settlement does not pay all the recipient's medical costs." Accordingly, the Arkansas statute, if enforceable against Ahlborn, authorizes imposition of a lien on her settlement proceeds in the amount of $215,645.30. Ahlborn's argument before the District Court, the Eighth Circuit, and this Court 280 has been that Arkansas law goes too far. We agree. Arkansas' statute finds no support in the federal third-party liability provisions, and in fact squarely conflicts with the anti-lien provision of the federal Medicaid laws. III We must decide whether ADHS can lay claim to more than the portion of Ahlborn's settlement that represents medical expenses.[9] The text of the federal third-party liability provisions suggests not; it focuses on recovery of payments for medical care. Medicaid recipients must, as a condition of eligibility, "assign the State any rights to payment for medical care from any third party," 42 U.S. C. 1396k(a)(1)(A) not rights to payment for, for example, lost wages. The other statutory language that ADHS relies upon is not to the contrary; indeed, it reinforces the limitation implicit in the assignment provision. First, ADHS points to 1396a(a)(25)(B)'s requirement that States "seek reimbursement for [medical] assistance to the extent of such legal liability" and suggests that this means that the entirety of a recipient's settlement is fair game. In fact, as is evident from the context of the emphasized language, "such legal liability" refers to "the legal liability of third parties to pay for care and services available under the plan." 1396a(a)(25)(A) Here, the tortfeasor has accepted liability for only one-sixth of the recipient's overall damages, and ADHS has stipulated that only $35,581.47 of that sum represents compensation for medical expenses. Under the circumstances, 281 the relevant "liability" extends no further than that amount.[10] Second, ADHS argues that the language of 1396a(a) (25)(H) favors its view that it can demand full reimbursement of its costs from Ahlborn's settlement. That provision, which echoes the requirement of a mandatory assignment of rights in 1396k(a), says that the State must have in effect laws that, "to the extent that payment has been made under the State plan for medical assistance for health care items or services furnished to an individual," give the State the right to recover from liable third parties. This must mean, says ADHS, that the agency's recovery is limited only by the amount it paid out on the recipient's behalf and not by the third-party tortfeasor's particular liability for medical expenses. But that reading ignores the rest of the provision, which makes clear that the State must be assigned "the rights of [the recipient] to payment by any other party for such health care items or services." 1396a(a)(25)(H) Again, the statute does not sanction an assignment of rights to payment for anything other than medical expensesnot lost wages, not pain and suffering, not an inheritance. Finally, ADHS points to the provision requiring that, where the State actively pursues recovery from the third party, Medicaid be reimbursed fully from "any amount collected by the State under an assignment" before "the remainder of such amount collected" is remitted to the recipient. 1396k(b). In ADHS' view, this shows that the State must be paid in full from any settlement. See Brief for Petitioners 13. But, even assuming the provision applies in cases where the State does not actively participate in the litigation, ADHS' conclusion rests on a false premise: The 282 "amount recovered under an assignment" is not, as ADHS assumes, the entire settlement; as explained above, under the federal statute the State's assigned rights extend only to recovery of payments for medical care. Accordingly, what 1396k(b) requires is that the State be paid first out of any damages representing payments for medical care before the recipient can recover any of her own costs for medical care.[11] At the very least, then, the federal third-party liability provisions require an assignment of no more than the right to recover that portion of a settlement that represents payments for medical care.[12] They did not mandate the enactment of the Arkansas scheme that we have described. 283 IV If there were no other relevant provisions in the federal statute, the State might plausibly argue that federal law supplied a recovery "floor" upon which States were free to build. In fact, though, the federal statute places express limits on the State's powers to pursue recovery of funds it paid on the recipient's behalf. These limitations are contained in 42 U.S. C. 1396a(a)(18) and 1396p. Section 1396a(a)(18) requires that a state Medicaid plan comply with 1396p, which in turn prohibits States (except in circumstances not relevant here) from placing liens against, or seeking recovery of benefits paid from, a Medicaid recipient: "(a) Imposition of lien against property of an individual on account of medical assistance rendered to him under a State plan "(1) No lien may be imposed against the property of any individual prior to his death on account of medical assistance paid or to be paid on his behalf under the State plan, except "(A) pursuant to the judgment of a court on account of benefits incorrectly paid on behalf of such individual, or "(B) [in certain circumstances not relevant here] "(b) Adjustment or recovery of medical assistance correctly paid under a State plan "(1) No adjustment or recovery of any medical assistance correctly paid on behalf of an individual under the 284 State plan may be made, except [in circumstances not relevant here]." 1396p. Read literally and in isolation, the anti-lien prohibition contained in 1396p(a) would appear to ban even a lien on that portion of the settlement proceeds that represents payments for medical care.[13] Ahlborn does not ask us to go so far, though; she assumes that the State's lien is consistent with federal law insofar as it encumbers proceeds designated as payments for medical care. Her argument, rather, is that the anti-lien provision precludes attachment or encumbrance of the remainder of the settlement. We agree. There is no question that the State can require an assignment of the right, or chose in action, to receive payments for medical care. So much is expressly provided for by 1396a(a)(25) and 1396k(a). And we assume, as do the parties, that the State can also demand as a condition of Medicaid eligibility that the recipient "assign" in advance any payments that may constitute reimbursement for medical costs. To the extent that the forced assignment is expressly authorized by the terms of 1396a(a)(25) and 1396k(a), it is an exception to the anti-lien provision. See Washington State Dept. of Social and Health But that does not mean that the State can force an assignment of, or place a lien on, any other portion of Ahlborn's property. As explained above, the exception carved out by 285 1396a(a)(25) and 1396k(a) is limited to payments for medical care. Beyond that, the anti-lien provision applies. ADHS tries to avoid the anti-lien provision by characterizing the settlement proceeds as not Ahlborn's "property."[14] Its argument appears to be that the automatic assignment effected by the Arkansas statute rendered the proceeds the property of the State.[15] See Brief for Petitioners 31 ("[U]nder Arkansas law, the lien does not attach to the recipient's `property' because it attaches only to those proceeds already assigned to the Department as a condition of Medicaid eligibility"). That argument fails for two reasons. First, ADHS insists that Ahlborn at all times until judgment retained her entire chose in actiona right that included her claim for medical damages. The statutory lien, then, cannot have attached until the proceeds materialized. That much is clear from the text of the Arkansas statute, which says that the "assignment shall be considered a statutory lien on any settlement received by the recipient from a third party." Ark. Code Ann. 20-77-307(c) (2001) The settlement is not "received" until the chose in action has been reduced to proceeds in Ahlborn's possession. Accordingly, the assertion that any of the proceeds belonged to the State all along lacks merit. Second, the State's argument that Ahlborn lost her property rights in the proceeds the instant she applied for medical assistance is inconsistent with the creation of a statutory 286 lien on those proceeds. Why, after all, would ADHS need a lien on its own property? A lien typically is imposed on the property of another for payment of a debt owed by that other. See Black's Law Dictionary 922 (6th ed. 1990). Nothing in the Arkansas statute defines the term otherwise. That the lien is also called an "assignment" does not alter the analysis. The terms that Arkansas employs to describe the mechanism by which it lays claim to the settlement proceeds do not, by themselves, tell us whether the statute violates the anti-lien provision. See United ; Although denominated an "assignment," the effect of the statute here was not to divest Ahlborn of all her property interest; instead, Ahlborn retained the right to sue for medical care payments, and the State asserted a right to the fruits of that suit once they materialized. In effect, and as at least some of the statutory language recognizes, Arkansas has imposed a lien on Ahlborn's property.[16] Since none of the federal third-party liability provisions excepts that lien from operation of the anti-lien provision, its imposition violates federal law. 287 V ADHS and its amici urge, however, that even if a lien on more than medical damages would violate federal law in some cases, a rule permitting such a lien ought to apply here either because Ahlborn breached her duty to "cooperate" with ADHS or because there is an inherent danger of manipulation in cases where the parties to a tort case settle without judicial oversight or input from the State. Neither argument is persuasive. The United States proposes a default rule of full reimbursement whenever the recipient breaches her duty to "cooperate," and asserts that Ahlborn in fact breached that duty.[17] But, even if the Government's allegations of obstruction were supported by the record, its conception of the duty to cooperate strays far beyond the text of the statute and the relevant regulations. The duty to cooperate arises principally, if not exclusively, in proceedings initiated by the State to recover from third parties. See 42 U.S. C. 1396k(a)(1)(C) (recipients must "cooperate with the State in identifying and providing information to assist the State in pursuing" third parties). Most of the accompanying federal regulations simply echo this basic duty; all they add is that the recipient must "[p]ay to the agency any support or medical care funds received that are covered by the assignment of rights." 42 CFR 433.147(b)(4) In any event, the aspersions the United States casts upon Ahlborn are entirely unsupported; all the record reveals is that ADHS, despite having intervened in the lawsuit and 288 asked to be apprised of any hearings, neither asked to be nor was involved in the settlement negotiations. Whatever the bounds of the duty to cooperate, there is no evidence that it was breached here. ADHS' and the United States' alternative argument that a rule of full reimbursement is needed generally to avoid the risk of settlement manipulation is more colorable, but ultimately also unpersuasive. The issue is not, of course, squarely presented here; ADHS has stipulated that only $35,581.47 of Ahlborn's settlement proceeds properly are designated as payments for medical costs. Even in the absence of such a postsettlement agreement, though, the risk that parties to a tort suit will allocate away the State's interest can be avoided either by obtaining the State's advance agreement to an allocation or, if necessary, by submitting the matter to a court for decision.[18] For just as there are risks in underestimating the value of readily calculable damages in settlement negotiations, so also is there a countervailing concern that a rule of absolute priority might preclude settlement in a large number of cases, and be unfair to the recipient in others.[19] 289 VI Finally, ADHS contends that the Court of Appeals' decision below accords insufficient weight to two decisions by the Departmental Appeals Board of HHS (Board) rejecting appeals by the States of California and Washington from denial of reimbursement for costs those States paid on behalf of Medicaid recipients who had settled tort claims. See App. to Pet. for Cert. 45-67 ); App. to Pet. for Cert. 68-86 ). Because the opinions in those cases address a different question from the one posed here, make no mention of the anti-lien provision, and, in any event, rest on a questionable construction of the federal third-party liability provisions, we conclude that they do not control our analysis. Normally, if a State recovers from a third party the cost of Medicaid benefits paid on behalf of a recipient, the Federal Government owes the State no reimbursement, and any funds already paid by the Federal Government must be returned. See 42 CFR 433.140(a)(2) ; 433.140(c). Washington and California both had adopted schemes according to which the State refrained from claiming full reimbursement from tort settlements and instead took only a portion of each settlement. (In California, the recipient typically could keep at least 50% of her settlement, see App. to Pet. for Cert. 72; in Washington, the proportion varied from case to case, see) Each scheme resulted in the State's having to pay a portion of the recipient's medical costsa portion for which the State sought partial reimbursement from the Federal Government. CMS (then called HCFA) denied this partial reimbursement 290 on the ground that the States had an absolute duty to seek full payment of medical expenses from third-party tortfeasors. The Board upheld CMS' determinations. In California's appeal, which came first, the Board concluded that the State's duty to seek recovery of benefits "from available third party sources to the fullest extent possible" included demanding full reimbursement from the entire proceeds of a Medicaid recipient's tort settlement. The Board acknowledged that 1396k(a) "refers to assignment only of `payment for medical care,'" but thought that "the statutory scheme as a whole contemplates that the actual recovery might be greater and, if it is, that Medicaid should be paid first." The Board gave two other reasons for siding with CMS: First, the legislative history of the third-party liability evinced a congressional intent that "the Medicaid program be reimbursed from available third party sources to the fullest extent possible," ibid.; and, second, California had long been on notice that it would not be reimbursed for any shortfall resulting from failure to fully recoup Medicaid's costs from tort settlements, see The Board also opined that the State could not escape its duty to seek full reimbursement by relying on the Medicaid recipient's efforts in litigating her claims. See Finally, responding to the State's argument that its scheme gave Medicaid recipients incentives to sue thirdparty tortfeasors and thus resulted in both greater recovery and lower costs for the State, the Board observed that "a state is free to allow recipients to retain the state's share" of any recovery, so long as it does not compromise the Federal Government's share. The Board reached the same conclusion, by the same means, in the Washington case. See Neither of these adjudications compels us to conclude that Arkansas' statutory lien comports with federal law. First, the Board's rulings address a different question from the one 291 presented here. The Board was concerned with the Federal Government's obligation to reimburse States that had, in its view, failed to seek full recovery of Medicaid's costs and had instead relied on recipients to act as private attorneys general. The Board neither discussed nor even so much as cited the federal anti-lien provision. Second, the Board's acknowledgment that the assignment of rights required by 1396k(a) is limited to payments for medical care only reinforces the clarity of the statutory language. Moreover, its resort to "the statutory scheme as a whole" as justification for muddying that clarity is nowhere explained. Given that the only statutory provisions CMS relied on are 1396a(a)(25), 1396k(a), and 1396k(b), see ; and given the Board's concession that the first two of these limit the State's assignment to payments for medical care, the "statutory scheme" must mean 1396k(b). But that provision does not authorize the State to demand reimbursement from portions of the settlement allocated or allocable to nonmedical damages; instead, it gives the State a priority disbursement from the medical expenses portion alone. See In fact, in its adjudication in the Washington case, the Board conceded as much: "[CMS] may require a state to assert a collection priority over funds obtained by Medicaid recipients in [thirdparty liability] suits even though the distribution methodology set forth in section [1396k(b)] refers only to payments collected pursuant to assignments for medical care." App. to Pet. for Cert. 54 The Board's reasoning therefore is internally inconsistent. Third, the Board's reliance on legislative history is misplaced. The Board properly observed that Congress, in crafting the Medicaid legislation, intended that Medicaid be a "payer of last resort." S. Rep. No. 99-146, p. 313 (1985). That does not mean, however, that Congress meant to authorize States to seek reimbursement from Medicaid recipients themselves; in fact, with the possible exception of a lien *292 on payments for medical care, the statute expressly prohibits liens against the property of Medicaid beneficiaries. See 42 U.S. C. 1396p(a). We recognize that Congress has delegated "broad regulatory authority to the Secretary [of HHS] in the Medicaid area," Wisconsin Dept. of Health and Family and that agency adjudications typically warrant deference. Here, however, the Board's reasoning couples internal inconsistency with a conscious disregard for the statutory text. Under these circumstances, we decline to treat the agency's reasoning as controlling. VII Federal Medicaid law does not authorize ADHS to assert a lien on Ahlborn's settlement in an amount exceeding $35,581.47, and the federal anti-lien provision affirmatively prohibits it from doing so. Arkansas' third-party liability provisions are unenforceable insofar as they compel a different conclusion. The judgment of the Court of Appeals is affirmed. It is so ordered.	1,931
Justice Scalia	majority	false	Republican Party of Minn. v. White	2002-06-27	null	https://www.courtlistener.com/opinion/121170/republican-party-of-minn-v-white/	https://www.courtlistener.com/api/rest/v3/clusters/121170/	2,002	2001-082	2	5	4	The question presented in this case is whether the First Amendment permits the Minnesota Supreme Court to prohibit candidates for judicial election in that State from announcing their views on disputed legal and political issues. I Since Minnesota's admission to the Union in 1858, the State's Constitution has provided for the selection of all state judges by popular election. Minn. Const., Art. VI, § 7. Since 1912, those elections have been nonpartisan. Act of June 19, ch. 2, 1912 Minn. Laws Special Sess., pp. 4-6. Since 1974, they have been subject to a legal restriction which states that a "candidate for a judicial office, including an incumbent judge," shall not "announce his or her views on disputed legal or political issues." Minn. Code of Judicial Conduct, Canon 5(A)(3)(d)(i) (2000). This prohibition, promulgated by the Minnesota Supreme Court and based on Canon 7(B) of the 1972 American Bar Association (ABA) Model Code of Judicial Conduct, is known as the "announce clause." Incumbent judges who violate it are subject to discipline, including removal, censure, civil penalties, and suspension without pay. Minn. Rules of Board on Judicial Standards 4(a)(6), 11(d) (2002). Lawyers who run for judicial office also must comply with the announce clause. Minn. Rule of Professional Conduct 8.2(b) (2002) ("A lawyer who is a candidate for judicial office shall comply with the applicable provisions of the Code of Judicial Conduct"). Those who violate it are subject to, inter alia, disbarment, suspension, and probation. Rule 8.4(a); Minn. Rules on Lawyers Professional Responsibility 8-14, 15(a) (2002). In 1996, one of the petitioners, Gregory Wersal, ran for associate justice of the Minnesota Supreme Court. In the course of the campaign, he distributed literature criticizing several Minnesota Supreme Court decisions on issues such as crime, welfare, and abortion. A complaint against Wersal 769 challenging, among other things, the propriety of this literature was filed with the Office of Lawyers Professional Responsibility, the agency which, under the direction of the Minnesota Lawyers Professional Responsibility Board,[1] investigates and prosecutes ethical violations of lawyer candidates for judicial office. The Lawyers Board dismissed the complaint; with regard to the charges that his campaign materials violated the announce clause, it expressed doubt whether the clause could constitutionally be enforced. Nonetheless, fearing that further ethical complaints would jeopardize his ability to practice law, Wersal withdrew from the election. In 1998, Wersal ran again for the same office. Early in that race, he sought an advisory opinion from the Lawyers Board with regard to whether it planned to enforce the announce clause. The Lawyers Board responded equivocally, stating that, although it had significant doubts about the constitutionality of the provision, it was unable to answer his question because he had not submitted a list of the announcements he wished to make.[2] Shortly thereafter, Wersal filed this lawsuit in Federal District Court against respondents,[3] seeking, inter alia, a 770 declaration that the announce clause violates the First Amendment and an injunction against its enforcement. Wersal alleged that he was forced to refrain from announcing his views on disputed issues during the 1998 campaign, to the point where he declined response to questions put to him by the press and public, out of concern that he might run afoul of the announce clause. Other plaintiffs in the suit, including the Minnesota Republican Party, alleged that, because the clause kept Wersal from announcing his views, they were unable to learn those views and support or oppose his candidacy accordingly. The parties filed cross-motions for summary judgment, and the District Court found in favor of respondents, holding that the announce clause did not violate the First Amendment. 63 F. Supp. 2d 967 (Minn. 1999). Over a dissent by Judge Beam, the United States Court of Appeals for the Eighth Circuit affirmed. Republican Party of Minn. v. Kelly, 247 F.3d 854 (2001). We granted certiorari. 534 U.S. 1054 (2001). II Before considering the constitutionality of the announce clause, we must be clear about its meaning. Its text says that a candidate for judicial office shall not "announce his or her views on disputed legal or political issues." Minn. Code of Judicial Conduct, Canon 5(A)(3)(d)(i) (2002). We know that "announc[ing] . . . views" on an issue covers much more than promising to decide an issue a particular way. The prohibition extends to the candidate's mere statement of his current position, even if he does not bind himself to maintain that position after election. All the parties agree this is the case, because the Minnesota Code contains a so-called "pledges or promises" clause, which separately prohibits judicial candidates from making "pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office," ibid. a prohibition that is not challenged here and on which we express no view. 771 There are, however, some limitations that the Minnesota Supreme Court has placed upon the scope of the announce clause that are not (to put it politely) immediately apparent from its text. The statements that formed the basis of the complaint against Wersal in 1996 included criticism of past decisions of the Minnesota Supreme Court. One piece of campaign literature stated that "[t]he Minnesota Supreme Court has issued decisions which are marked by their disregard for the Legislature and a lack of common sense." App. 37. It went on to criticize a decision excluding from evidence confessions by criminal defendants that were not tape-recorded, asking "[s]hould we conclude that because the Supreme Court does not trust police, it allows confessed criminals to go free?" Ibid. It criticized a decision striking down a state law restricting welfare benefits, asserting that "[i]t's the Legislature which should set our spending policies." Ibid. And it criticized a decision requiring public financing of abortions for poor women as "unprecedented" and a "pro-abortion stance." Id., at 38. Although one would think that all of these statements touched on disputed legal or political issues, they did not (or at least do not now) fall within the scope of the announce clause. The Judicial Board issued an opinion stating that judicial candidates may criticize past decisions, and the Lawyers Board refused to discipline Wersal for the foregoing statements because, in part, it thought they did not violate the announce clause. The Eighth Circuit relied on the Judicial Board's opinion in upholding the announce clause, 247 F.3d, at 882, and the Minnesota Supreme Court recently embraced the Eighth Circuit's interpretation, In re Code of Judicial Conduct, 639 N.W.2d 55 (2002). There are yet further limitations upon the apparent plain meaning of the announce clause: In light of the constitutional concerns, the District Court construed the clause to reach only disputed issues that are likely to come before the candidate if he is elected judge. 63 F. Supp. 2d, at 986. The 772 Eighth Circuit accepted this limiting interpretation by the District Court, and in addition construed the clause to allow general discussions of case law and judicial philosophy. 247 F.3d, at 881-882. The Supreme Court of Minnesota adopted these interpretations as well when it ordered enforcement of the announce clause in accordance with the Eighth Circuit's opinion. In re Code of Judicial Conduct, supra. It seems to us, however, thatlike the text of the announce clause itselfthese limitations upon the text of the announce clause are not all that they appear to be. First, respondents acknowledged at oral argument that statements critical of past judicial decisions are not permissible if the candidate also states that he is against stare decisis. Tr. of Oral Arg. 33-34.[4] Thus, candidates must choose between stating their views critical of past decisions and stating their views in opposition to stare decisis. Or, to look at it more concretely, they may state their view that prior decisions were erroneous only if they do not assert that they, if elected, have any power to eliminate erroneous decisions. Second, limiting the scope of the clause to issues likely to come before a court is not much of a limitation at all. One would hardly expect the "disputed legal or political issues" raised in the course of a state judicial election to include such matters as whether the Federal Government should end the embargo of Cuba. Quite obviously, they will be those legal or political disputes that are the proper (or by past decisions have been made the improper) business of the state courts. And within that relevant category, "[t]here is almost no legal or political issue that is unlikely to come before a judge of an American court, state or federal, of general jurisdiction." 773 Buckley v. Illinois Judicial Inquiry Bd., 997 F.2d 224, 229 (CA7 1993). Third, construing the clause to allow "general" discussions of case law and judicial philosophy turns out to be of little help in an election campaign. At oral argument, respondents gave, as an example of this exception, that a candidate is free to assert that he is a "`strict constructionist.' " Tr. of Oral Arg. 29. But that, like most other philosophical generalities, has little meaningful content for the electorate unless it is exemplified by application to a particular issue of construction likely to come before a courtfor example, whether a particular statute runs afoul of any provision of the Constitution. Respondents conceded that the announce clause would prohibit the candidate from exemplifying his philosophy in this fashion. Id., at 43. Without such application to real-life issues, all candidates can claim to be "strict constructionists" with equal (and unhelpful) plausibility. In any event, it is clear that the announce clause prohibits a judicial candidate from stating his views on any specific nonfanciful legal question within the province of the court for which he is running, except in the context of discussing past decisionsand in the latter context as well, if he expresses the view that he is not bound by stare decisis.[5] 774 Respondents contend that this still leaves plenty of topics for discussion on the campaign trail. These include a candidate's "character," "education," "work habits," and "how [he] would handle administrative duties if elected." Brief for Respondents 35-36. Indeed, the Judicial Board has printed a list of pre approved questions which judicial candidates are allowed to answer. These include how the candidate feels about cameras in the courtroom, how he would go about reducing the case load, how the costs of judicial administration can be reduced, and how he proposes to ensure that minorities and women are treated more fairly by the court system. Minnesota State Bar Association Judicial Elections Task Force Report & Recommendations, App. C (June 19, 1997), reprinted at App. 97-103. Whether this list of pre approved subjects, and other topics not prohibited by the announce clause, adequately fulfill the First Amendment's guarantee of freedom of speech is the question to which we now turn. III As the Court of Appeals recognized, the announce clause both prohibits speech on the basis of its content and burdens a category of speech that is "at the core of our First Amendment freedoms"speech about the qualifications of candidates for public office. 247 F.3d, at 861, 863. The Court of Appeals concluded that the proper test to be applied to determine the constitutionality of such a restriction is what our cases have called strict scrutiny, id., at 864; the parties do not dispute that this is correct. Under the strict-scrutiny test, respondents have the burden to prove that the announce 775 clause is (1) narrowly tailored, to serve (2) a compelling state interest. E. g., Eu v. San Francisco County Democratic Central Comm., 489 U.S. 214, 222 (1989). In order for respondents to show that the announce clause is narrowly tailored, they must demonstrate that it does not "unnecessarily circumscrib[e] protected expression." Brown v. Hartlage, 456 U.S. 45, 54 (1982). The Court of Appeals concluded that respondents had established two interests as sufficiently compelling to justify the announce clause: preserving the impartiality of the state judiciary and preserving the appearance of the impartiality of the state judiciary. 247 F.3d, at 867. Respondents reassert these two interests before us, arguing that the first is compelling because it protects the due process rights of litigants, and that the second is compelling because it preserves public confidence in the judiciary.[6] Respondents are rather vague, however, about what they mean by "impartiality." Indeed, although the term is used throughout the Eighth Circuit's opinion, the briefs, the Minnesota Code of Judicial Conduct, and the ABA Codes of Judicial Conduct, none of these sources bothers to define it. Clarity on this point is essential before we can decide whether impartiality is indeed a compelling state interest, and, if so, whether the announce clause is narrowly tailored to achieve it. A One meaning of "impartiality" in the judicial contextand of course its root meaningis the lack of bias for or against either party to the proceeding. Impartiality in this sense 776 assures equal application of the law. That is, it guarantees a party that the judge who hears his case will apply the law to him in the same way he applies it to any other party. This is the traditional sense in which the term is used. See Webster's New International Dictionary 1247 (2d ed. 1950) (defining "impartial" as "[n]ot partial; esp., not favoring one more than another; treating all alike; unbiased; equitable; fair; just"). It is also the sense in which it is used in the cases cited by respondents and amici for the proposition that an impartial judge is essential to due process. Tumey v. Ohio, 273 U.S. 510, 523, 531-534 (1927) (judge violated due process by sitting in a case in which it would be in his financial interest to find against one of the parties); Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 822-825 (1986) (same); Ward v. Monroeville, 409 U.S. 57, 58-62 (1972) (same); Johnson v. Mississippi, 403 U.S. 212, 215-216 (1971) (per curiam) (judge violated due process by sitting in a case in which one of the parties was a previously successful litigant against him); Bracy v. Gramley, 520 U.S. 899, 905 (1997) (would violate due process if a judge was disposed to rule against defendants who did not bribe him in order to cover up the fact that he regularly ruled in favor of defendants who did bribe him); In re Murchison, 349 U.S. 133, 137-139 (1955) (judge violated due process by sitting in the criminal trial of defendant whom he had indicted). We think it plain that the announce clause is not narrowly tailored to serve impartiality (or the appearance of impartiality) in this sense. Indeed, the clause is barely tailored to serve that interest at all, inasmuch as it does not restrict speech for or against particular parties, but rather speech for or against particular issues. To be sure, when a case arises that turns on a legal issue on which the judge (as a candidate) had taken a particular stand, the party taking the opposite stand is likely to lose. But not because of any bias against that party, or favoritism toward the other party. 777 Any party taking that position is just as likely to lose. The judge is applying the law (as he sees it) evenhandedly.[7] B It is perhaps possible to use the term "impartiality" in the judicial context (though this is certainly not a common usage) to mean lack of preconception in favor of or against a particular legal view. This sort of impartiality would be concerned, not with guaranteeing litigants equal application of the law, but rather with guaranteeing them an equal chance to persuade the court on the legal points in their case. Impartiality in this sense may well be an interest served by the announce clause, but it is not a compelling state interest, as strict scrutiny requires. A judge's lack of predisposition regarding the relevant legal issues in a case has never been thought a necessary component of equal justice, and with good reason. For one thing, it is virtually impossible to find a judge who does not have preconceptions about the law. As then-Justice Rehnquist observed of our own Court: "Since most Justices come to this bench no earlier than their middle years, it would be unusual if they had not by that time formulated at least some tentative notions that would influence them in their interpretation of the sweeping clauses of the Constitution and their interaction with one another. It would be not merely unusual, but extraordinary, if they had 778 not at least given opinions as to constitutional issues in their previous legal careers." Laird v. Tatum, 409 U.S. 824, 835 (1972) (memorandum opinion). Indeed, even if it were possible to select judges who did not have preconceived views on legal issues, it would hardly be desirable to do so. "Proof that a Justice's mind at the time he joined the Court was a complete tabula rasa in the area of constitutional adjudication would be evidence of lack of qualification, not lack of bias." Ibid. The Minnesota Constitution positively forbids the selection to courts of general jurisdiction of judges who are impartial in the sense of having no views on the law. Minn. Const., Art. VI, § 5 ("Judges of the supreme court, the court of appeals and the district court shall be learned in the law"). And since avoiding judicial preconceptions on legal issues is neither possible nor desirable, pretending otherwise by attempting to preserve the "appearance" of that type of impartiality can hardly be a compelling state interest either. C A third possible meaning of "impartiality" (again not a common one) might be described as open mindedness. This quality in a judge demands, not that he have no preconceptions on legal issues, but that he be willing to consider views that oppose his preconceptions, and remain open to persuasion, when the issues arise in a pending case. This sort of impartiality seeks to guarantee each litigant, not an equal chance to win the legal points in the case, but at least some chance of doing so. It may well be that impartiality in this sense, and the appearance of it, are desirable in the judiciary, but we need not pursue that inquiry, since we do not believe the Minnesota Supreme Court adopted the announce clause for that purpose. Respondents argue that the announce clause serves the interest in open mindedness, or at least in the appearance of open mindedness, because it relieves a judge from pressure to rule a certain way in order to maintain consistency with 779 statements the judge has previously made. The problem is, however, that statements in election campaigns are such an infinitesimal portion of the public commitments to legal positions that judges (or judges-to-be) undertake, that this object of the prohibition is implausible. Before they arrive on the bench (whether by election or otherwise) judges have often committed themselves on legal issues that they must later rule upon. See, e. g., Laird, supra, at 831-833 (describing Justice Black's participation in several cases construing and deciding the constitutionality of the Fair Labor Standards Act, even though as a Senator he had been one of its principal authors; and Chief Justice Hughes's authorship of the opinion overruling Adkins v. Children's Hospital of D. C., 261 U.S. 525 (1923), a case he had criticized in a book written before his appointment to the Court). More common still is a judge's confronting a legal issue on which he has expressed an opinion while on the bench. Most frequently, of course, that prior expression will have occurred in ruling on an earlier case. But judges often state their views on disputed legal issues outside the context of adjudicationin classes that they conduct, and in books and speeches. Like the ABA Codes of Judicial Conduct, the Minnesota Code not only permits but encourages this. See Minn. Code of Judicial Conduct, Canon 4(B) (2002) ("A judge may write, lecture, teach, speak and participate in other extra-judicial activities concerning the law . . ."); Minn. Code of Judicial Conduct, Canon 4(B), Comment. (2002) ("To the extent that time permits, a judge is encouraged to do so . . ."). That is quite incompatible with the notion that the need for openmindedness (or for the appearance of openmindedness) lies behind the prohibition at issue here. The short of the matter is this: In Minnesota, a candidate for judicial office may not say "I think it is constitutional for the legislature to prohibit same-sex marriages." He may say the very same thing, however, up until the very day before he declares himself a candidate, and may say it repeatedly 780 (until litigation is pending) after he is elected. As a means of pursuing the objective of openmindedness that respondents now articulate, the announce clause is so woefully under inclusive as to render belief in that purpose a challenge to the credulous. See City of Ladue v. Gilleo, 512 U.S. 43, 52-53 (1994) (noting that under inclusiveness "diminish[es] the credibility of the government's rationale for restricting speech"); Florida Star v. B. J. F., 491 U.S. 524, 541-542 (1989) (Scalia, J., concurring in judgment) ("[A] law cannot be regarded as protecting an interest of the highest order, and thus as justifying a restriction upon truthful speech, when it leaves appreciable damage to that supposedly vital interest unprohibited" (internal quotation marks and citation omitted)). Justice Stevens asserts that statements made in an election campaign pose a special threat to openmindedness because the candidate, when elected judge, will have a particular reluctance to contradict them. Post, at 801. That might be plausible, perhaps, with regard to campaign promises. A candidate who says "If elected, I will vote to uphold the legislature's power to prohibit same-sex marriages" will positively be breaking his word if he does not do so (although one would be naive not to recognize that campaign promises areby long democratic traditionthe least binding form of human commitment). But, as noted earlier, the Minnesota Supreme Court has adopted a separate prohibition on campaign "pledges or promises," which is not challenged here. The proposition that judges feel significantly greater compulsion, or appear to feel significantly greater compulsion, to maintain consistency with nonpromissory statements made during a judicial campaign than with such statements made before or after the campaign is not self-evidently true. It seems to us quite likely, in fact, that in many cases the opposite is true. We doubt, for example, that a mere statement of position enunciated during the pendency of an election will be regarded by a judge as more bindingor as more likely 781 to subject him to popular disfavor if reconsideredthan a carefully considered holding that the judge set forth in an earlier opinion denying some individual's claim to justice. In any event, it suffices to say that respondents have not carried the burden imposed by our strict-scrutiny test to establish this proposition (that campaign statements are uniquely destructive of openmindedness) on which the validity of the announce clause rests. See, e. g., Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 841 (1978) (rejecting speech restriction subject to strict scrutiny where the State "offered little more than assertion and conjecture to support its claim that without criminal sanctions the objectives of the statutory scheme would be seriously undermined"); United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 816-825 (2000) (same).[8] Moreover, the notion that the special context of electioneering justifies an abridgment of the right to speak out on disputed issues sets our First Amendment jurisprudence on its head. "[D]ebate on the qualifications of candidates" is "at the core of our electoral process and of the First Amendment freedoms," not at the edges. Eu, 489 U. S., at 222-223 (internal quotation marks omitted). "The role that elected officials play in our society makes it all the more imperative that they be allowed freely to express themselves on matters 782 of current public importance." Wood v. Georgia, 370 U.S. 375, 395 (1962). "It is simply not the function of government to select which issues are worth discussing or debating in the course of a political campaign." Brown, 456 U. S., at 60 (internal quotation marks and citation omitted). We have never allowed the government to prohibit candidates from communicating relevant information to voters during an election. Justice Ginsburg would do soand much of her dissent confirms rather than refutes our conclusion that the purpose behind the announce clause is not openmindedness in the judiciary, but the undermining of judicial elections. She contends that the announce clause must be constitutional because due process would be denied if an elected judge sat in a case involving an issue on which he had previously announced his view. Post, at 816, 819. She reaches this conclusion because, she says, such a judge would have a "direct, personal, substantial, and pecuniary interest" in ruling consistently with his previously announced view, in order to reduce the risk that he will be "voted off the bench and thereby lose [his] salary and emoluments," post, at 816 (internal quotation marks and alterations omitted). But elected judgesregardless of whether they have announced any views beforehandalways face the pressure of an electorate who might disagree with their rulings and therefore vote them off the bench. Surely the judge who frees Timothy McVeigh places his job much more at risk than the judge who (horror of horrors!) reconsiders his previously announced view on a disputed legal issue. So if, as Justice Ginsburg claims, itviolates due process for a judge to sit in a case in which ruling one way rather than another increases his prospects for reelection, thenquite simplythe practice of electing judges is itself a violation of due process. It is not difficult to understand how one with these views would approve the election-nullifying effect of the announce 783 clause.[9] They are not, however, the views reflected in the Due Process Clause of the Fourteenth Amendment, which has coexisted with the election of judges ever since it was adopted, see infra, at 785-786. Justice Ginsburg devotes the rest of her dissent to attacking arguments we do not make. For example, despite the number of pages she dedicates to disproving this proposition, post, at 805-809, we neither assert nor imply that the First Amendment requires campaigns for judicial office to sound the same as those for legislative office.[10] What we do assert, and what Justice Ginsburg ignores, is that, even if the First Amendment allows greater regulation of judicial election campaigns than legislative election campaigns, the announce clause still fails strict scrutiny because it is woefully under inclusive, prohibiting announcements by judges (and would-be judges) only at certain times and in certain forms. We rely on the cases involving speech during elections, supra, at 781-782, only to make the obvious point that this under inclusiveness cannot be explained by resort to the notion that the First Amendment provides less protection during an election campaign than at other times.[11] 784 But in any case, Justice Ginsburg greatly exaggerates the difference between judicial and legislative elections. She asserts that "the rationale underlying unconstrained speech in elections for political officethat representative government depends on the public's ability to choose agents who will act at its behestdoes not carry over to campaigns for the bench." Post, at 806. This complete separation of the judiciary from the enterprise of "representative government" might have some truth in those countries where judges neither make law themselves nor set aside the laws enacted by the legislature. It is not a true picture of the American system. Not only do state-court judges possess the power to "make" common law, but they have the immense power to shape the States' constitutions as well. See, e. g., Baker v. State, 170 Vt. 194, 744 A.2d 864 (1999). Which is precisely why the election of state judges became popular.[12] 785 IV To sustain the announce clause, the Eighth Circuit relied heavily on the fact that a pervasive practice of prohibiting judicial candidates from discussing disputed legal and political issues developed during the last half of the 20th century. 247 F.3d, at 879-880. It is true that a "universal and longestablished" tradition of prohibiting certain conduct creates "a strong presumption" that the prohibition is constitutional: "Principles of liberty fundamental enough to have been embodied within constitutional guarantees are not readily erased from the Nation's consciousness." McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 375-377 (1995) (Scalia, J., dissenting). The practice of prohibiting speech by judicial candidates on disputed issues, however, is neither long nor universal. At the time of the founding, only Vermont (before it became a State) selected any of its judges by election. Starting with Georgia in 1812, States began to provide for judicial election, a development rapidly accelerated by Jacksonian democracy. By the time of the Civil War, the great majority of States elected their judges. E. Haynes, Selection and Tenure of Judges 99-135 (1944); Berkson, Judicial Selection in the United States: A Special Report, 64 Judicature 176 (1980). We know of no restrictions upon statements that could be made by judicial candidates (including judges) throughout the 19th and the first quarter of the 20th century. Indeed, judicial elections were generally partisan during this period, the movement toward nonpartisan judicial elections not even beginning until the 1870's. Id., at 176-177; 786 M. Comisky & P. Patterson, The JudiciarySelection, Compensation, Ethics, and Discipline 4, 7 (1987). Thus, not only were judicial candidates (including judges) discussing disputed legal and political issues on the campaign trail, but they were touting party affiliations and angling for party nominations all the while. The first code regulating judicial conduct was adopted by the ABA in 1924. 48 ABA Reports 74 (1923) (report of Chief Justice Taft); P. McFadden, Electing Justice: The Law and Ethics of Judicial Election Campaigns 86 (1990). It contained a provision akin to the announce clause: "A candidate for judicial position . . . should not announce in advance his conclusions of law on disputed issues to secure class support . . . ." ABA Canon of Judicial Ethics 30 (1924). The States were slow to adopt the canons, however. "By the end of World War II, the canons . . . were binding by the bar associations or supreme courts of only eleven states." J. MacKenzie, The Appearance of Justice 191 (1974). Even today, although a majority of States have adopted either the announce clause or its 1990 ABA successor, adoption is not unanimous. Of the 31 States that select some or all of their appellate and general-jurisdiction judges by election, see American Judicature Society, Judicial Selection in the States: Appellate and General Jurisdiction Courts (Apr. 2002), 4 have adopted no candidate-speech restriction comparable to the announce clause,[13] and 1 prohibits only the discussion of "pending litigation."[14] This practice, relatively new to judicial elections and still not universally adopted, does not compare well with the traditions deemed worthy of our attention in prior cases. E. g., Burson v. Freeman, 504 U.S. 191, 205 206 (1992) (crediting tradition of prohibiting speech around 787 polling places that began with the very adoption of the secret ballot in the late 19th century, and in which every State participated); id., at 214-216 (Scalia, J., concurring in judgment) (same); McIntyre, supra, at 375-377 (Scalia, J., dissenting) (crediting tradition of prohibiting anonymous election literature, which again began in 1890 and was universally adopted). * * There is an obvious tension between the article of Minnesota's popularly approved Constitution which provides that judges shall be elected, and the Minnesota Supreme Court's announce clause which places most subjects of interest to the voters off limits. (The candidate-speech restrictions of all the other States that have them are also the product of judicial fiat.[15]) The disparity is perhaps unsurprising, since the ABA, which originated the announce clause, has long been an opponent of judicial elections. See ABA Model Code of Judicial Conduct, Canon 5(C)(2), Comment (2000) ("[M]erit selection of judges is a preferable manner in which to select the judiciary"); An Independent Judiciary: Report of the ABA Commission on Separation of Powers and Judicial Independence 96 (1997) ("The American Bar Association strongly endorses the merit selection of judges, as opposed to their election . . . . Five times between August 1972 and August 1984 the House of Delegates has approved recommendations stating the preference for merit selection and encouraging bar associations in jurisdictions where judges are elected . . . to work for the adoption of merit selection and retention"). That opposition may be well taken (it certainly had the support *788 of the Founders of the Federal Government), but the First Amendment does not permit it to achieve its goal by leaving the principle of elections in place while preventing candidates from discussing what the elections are about. "[T]he greater power to dispense with elections altogether does not include the lesser power to conduct elections under conditions of state-imposed voter ignorance. If the State chooses to tap the energy and the legitimizing power of the democratic process, it must accord the participants in that process . . . the First Amendment rights that attach to their roles." Renne v. Geary, 501 U.S. 312, 349 (1991) (Marshall, J., dissenting); accord, Meyer v. Grant, 486 U.S. 414, 424 425 (1988) (rejecting argument that the greater power to end voter initiatives includes the lesser power to prohibit paid petition-circulators). The Minnesota Supreme Court's canon of judicial conduct prohibiting candidates for judicial election from announcing their views on disputed legal and political issues violates the First Amendment. Accordingly, we reverse the grant of summary judgment to respondents and remand the case for proceedings consistent with this opinion. It is so ordered.	The question presented in this case is whether the First Amendment permits the Minnesota Supreme Court to prohibit candidates for judicial election in that State from announcing their views on disputed legal and political issues. I Since Minnesota's admission to the Union in 1858, the State's Constitution has provided for the selection of all state judges by popular election. Minn. Const., Art. VI, 7. Since 1912, those elections have been nonpartisan. Act of June 19, ch. 2, 1912 Minn. Laws Special Sess., pp. 4-6. Since 1974, they have been subject to a legal restriction which states that a "candidate for a judicial office, including an incumbent judge," shall not "announce his or her views on disputed legal or political issues." Minn. Code of Judicial Canon 5(A)(3)(d)(i) This prohibition, promulgated by the Minnesota Supreme Court and based on Canon 7(B) of the 1972 American Bar Association (ABA) Model Code of Judicial is known as the "announce clause." Incumbent judges who violate it are subject to discipline, including removal, censure, civil penalties, and suspension without pay. Minn. Rules of Board on Judicial Standards 4(a)(6), 11(d) Lawyers who run for judicial office also must comply with the announce clause. Minn. Rule of Professional 8.2(b) ("A lawyer who is a candidate for judicial office shall comply with the applicable provisions of the Code of Judicial "). Those who violate it are subject to, inter alia, disbarment, suspension, and probation. Rule 8.4(a); Minn. Rules on Lawyers Professional Responsibility 8-14, 15(a) In 1996, one of the petitioners, Gregory Wersal, ran for associate justice of the Minnesota Supreme Court. In the course of the campaign, he distributed literature criticizing several Minnesota Supreme Court decisions on issues such as crime, welfare, and abortion. A complaint against Wersal 769 challenging, among other things, the propriety of this literature was filed with the Office of Lawyers Professional Responsibility, the agency which, under the direction of the Minnesota Lawyers Professional Responsibility Board,[1] investigates and prosecutes ethical violations of lawyer candidates for judicial The Lawyers Board dismissed the complaint; with regard to the charges that his campaign materials violated the announce clause, it expressed doubt whether the clause could constitutionally be enforced. Nonetheless, fearing that further ethical complaints would jeopardize his ability to practice law, Wersal withdrew from the election. In 1998, Wersal ran again for the same Early in that race, he sought an advisory opinion from the Lawyers Board with regard to whether it planned to enforce the announce clause. The Lawyers Board responded equivocally, stating that, although it had significant doubts about the constitutionality of the provision, it was unable to answer his question because he had not submitted a list of the announcements he wished to make.[2] Shortly thereafter, Wersal filed this lawsuit in Federal District Court against respondents,[3] seeking, inter alia, a 770 declaration that the announce clause violates the First Amendment and an injunction against its enforcement. Wersal alleged that he was forced to refrain from announcing his views on disputed issues during the 1998 campaign, to the point where he declined response to questions put to him by the press and public, out of concern that he might run afoul of the announce clause. Other plaintiffs in the suit, including the Minnesota Republican Party, alleged that, because the clause kept Wersal from announcing his views, they were unable to learn those views and support or oppose his candidacy accordingly. The parties filed cross-motions for summary judgment, and the District Court found in favor of respondents, holding that the announce clause did not violate the First Amendment. Over a dissent by Judge Beam, the United States Court of Appeals for the Eighth Circuit affirmed. Republican Party of We granted certiorari. II Before considering the constitutionality of the announce clause, we must be clear about its meaning. Its text says that a candidate for judicial office shall not "announce his or her views on disputed legal or political issues." Minn. Code of Judicial Canon 5(A)(3)(d)(i) We know that "announc[ing] views" on an issue covers much more than promising to decide an issue a particular way. The prohibition extends to the candidate's mere statement of his current position, even if he does not bind himself to maintain that position after election. All the parties agree this is the case, because the Minnesota Code contains a so-called "pledges or promises" clause, which separately prohibits judicial candidates from making "pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office," a prohibition that is not challenged here and on which we express no view. 771 There are, however, some limitations that the Minnesota Supreme Court has placed upon the scope of the announce clause that are not (to put it politely) immediately apparent from its text. The statements that formed the basis of the complaint against Wersal in 1996 included criticism of past decisions of the Minnesota Supreme Court. One piece of campaign literature stated that "[t]he Minnesota Supreme Court has issued decisions which are marked by their disregard for the Legislature and a lack of common sense." App. 37. It went on to criticize a decision excluding from evidence confessions by criminal defendants that were not tape-recorded, asking "[s]hould we conclude that because the Supreme Court does not trust police, it allows confessed criminals to go free?" It criticized a decision striking down a state law restricting welfare benefits, asserting that "[i]t's the Legislature which should set our spending policies." And it criticized a decision requiring public financing of abortions for poor women as "unprecedented" and a "pro-abortion stance." Although one would think that all of these statements touched on disputed legal or political issues, they did not (or at least do not now) fall within the scope of the announce clause. The Judicial Board issued an opinion stating that judicial candidates may criticize past decisions, and the Lawyers Board refused to discipline Wersal for the foregoing statements because, in part, it thought they did not violate the announce clause. The Eighth Circuit relied on the Judicial Board's opinion in upholding the announce clause, and the Minnesota Supreme Court recently embraced the Eighth Circuit's interpretation, In re Code of Judicial There are yet further limitations upon the apparent plain meaning of the announce clause: In light of the constitutional concerns, the District Court construed the clause to reach only disputed issues that are likely to come before the candidate if he is elected The 772 Eighth Circuit accepted this limiting interpretation by the District Court, and in addition construed the clause to allow general discussions of case law and judicial -882. The Supreme Court of Minnesota adopted these interpretations as well when it ordered enforcement of the announce clause in accordance with the Eighth Circuit's opinion. In re Code of Judicial It seems to us, however, thatlike the text of the announce clause itselfthese limitations upon the text of the announce clause are not all that they appear to be. First, respondents acknowledged at oral argument that statements critical of past judicial decisions are not permissible if the candidate also states that he is against stare decisis. Tr. of Oral Arg. 33-34.[4] Thus, candidates must choose between stating their views critical of past decisions and stating their views in opposition to stare decisis. Or, to look at it more concretely, they may state their view that prior decisions were erroneous only if they do not assert that they, if elected, have any power to eliminate erroneous decisions. Second, limiting the scope of the clause to issues likely to come before a court is not much of a limitation at all. One would hardly expect the "disputed legal or political issues" raised in the course of a state judicial election to include such matters as whether the Federal Government should end the embargo of Cuba. Quite obviously, they will be those legal or political disputes that are the proper (or by past decisions have been made the improper) business of the state courts. And within that relevant category, "[t]here is almost no legal or political issue that is unlikely to come before a judge of an American court, state or federal, of general jurisdiction." 773 Third, construing the clause to allow "general" discussions of case law and judicial philosophy turns out to be of little help in an election campaign. At oral argument, respondents gave, as an example of this exception, that a candidate is free to assert that he is a "`strict constructionist.' " Tr. of Oral Arg. 29. But that, like most other philosophical generalities, has little meaningful content for the electorate unless it is exemplified by application to a particular issue of construction likely to come before a courtfor example, whether a particular statute runs afoul of any provision of the Constitution. Respondents conceded that the announce clause would prohibit the candidate from exemplifying his philosophy in this fashion. Without such application to real-life issues, all candidates can claim to be "strict constructionists" with equal (and unhelpful) plausibility. In any event, it is clear that the announce clause prohibits a judicial candidate from stating his views on any specific nonfanciful legal question within the province of the court for which he is running, except in the context of discussing past decisionsand in the latter context as well, if he expresses the view that he is not bound by stare decisis.[5] 774 Respondents contend that this still leaves plenty of topics for discussion on the campaign trail. These include a candidate's "character," "education," "work habits," and "how [he] would handle administrative duties if elected." Brief for Respondents 35-36. Indeed, the Judicial Board has printed a list of pre approved questions which judicial candidates are allowed to answer. These include how the candidate feels about cameras in the courtroom, how he would go about reducing the case load, how the costs of judicial administration can be reduced, and how he proposes to ensure that minorities and women are treated more fairly by the court system. Minnesota State Bar Association Judicial Elections Task Force Report & Recommendations, App. C reprinted at App. 97-103. Whether this list of pre approved subjects, and other topics not prohibited by the announce clause, adequately fulfill the First Amendment's guarantee of freedom of speech is the question to which we now turn. III As the Court of Appeals recognized, the announce clause both prohibits speech on the basis of its content and burdens a category of speech that is "at the core of our First Amendment freedoms"speech about the qualifications of candidates for public 863. The Court of Appeals concluded that the proper test to be applied to determine the constitutionality of such a restriction is what our cases have called strict scrutiny, ; the parties do not dispute that this is correct. Under the strict-scrutiny test, respondents have the burden to prove that the announce 775 clause is (1) narrowly tailored, to serve (2) a compelling state interest. E. g., In order for respondents to show that the announce clause is narrowly tailored, they must demonstrate that it does not "unnecessarily circumscrib[e] protected expression." The Court of Appeals concluded that respondents had established two interests as sufficiently compelling to justify the announce clause: preserving the impartiality of the state judiciary and preserving the appearance of the impartiality of the state Respondents reassert these two interests before us, arguing that the first is compelling because it protects the due process rights of litigants, and that the second is compelling because it preserves public confidence in the [6] Respondents are rather vague, however, about what they mean by "impartiality." Indeed, although the term is used throughout the Eighth Circuit's opinion, the briefs, the Minnesota Code of Judicial and the ABA Codes of Judicial none of these sources bothers to define it. Clarity on this point is essential before we can decide whether impartiality is indeed a compelling state interest, and, if so, whether the announce clause is narrowly tailored to achieve it. A One meaning of "impartiality" in the judicial contextand of course its root meaningis the lack of bias for or against either party to the proceeding. Impartiality in this sense 776 assures equal application of the law. That is, it guarantees a party that the judge who hears his case will apply the law to him in the same way he applies it to any other party. This is the traditional sense in which the term is used. See Webster's New International Dictionary 1247 (2d ed. 1950) (defining "impartial" as "[n]ot partial; esp., not favoring one more than another; treating all alike; unbiased; equitable; fair; just"). It is also the sense in which it is used in the cases cited by respondents and amici for the proposition that an impartial judge is essential to due process. ; Aetna Life Ins. ; ; (judge violated due process by sitting in a case in which one of the parties was a previously successful litigant against him); ; In re Murchison, We think it plain that the announce clause is not narrowly tailored to serve impartiality (or the appearance of impartiality) in this sense. Indeed, the clause is barely tailored to serve that interest at all, inasmuch as it does not restrict speech for or against particular parties, but rather speech for or against particular issues. To be sure, when a case arises that turns on a legal issue on which the judge (as a candidate) had taken a particular stand, the party taking the opposite stand is likely to lose. But not because of any bias against that party, or favoritism toward the other party. 777 Any party taking that position is just as likely to lose. The judge is applying the law (as he sees it) evenhandedly.[7] B It is perhaps possible to use the term "impartiality" in the judicial context (though this is certainly not a common usage) to mean lack of preconception in favor of or against a particular legal view. This sort of impartiality would be concerned, not with guaranteeing litigants equal application of the law, but rather with guaranteeing them an equal chance to persuade the court on the legal points in their case. Impartiality in this sense may well be an interest served by the announce clause, but it is not a compelling state interest, as strict scrutiny requires. A judge's lack of predisposition regarding the relevant legal issues in a case has never been thought a necessary component of equal justice, and with good reason. For one thing, it is virtually impossible to find a judge who does not have preconceptions about the law. As then-Justice Rehnquist observed of our own Court: "Since most Justices come to this bench no earlier than their middle years, it would be unusual if they had not by that time formulated at least some tentative notions that would influence them in their interpretation of the sweeping clauses of the Constitution and their interaction with one another. It would be not merely unusual, but extraordinary, if they had 778 not at least given opinions as to constitutional issues in their previous legal careers." Indeed, even if it were possible to select judges who did not have preconceived views on legal issues, it would hardly be desirable to do so. "Proof that a Justice's mind at the time he joined the Court was a complete tabula rasa in the area of constitutional adjudication would be evidence of lack of qualification, not lack of bias." The Minnesota Constitution positively forbids the selection to courts of general jurisdiction of judges who are impartial in the sense of having no views on the law. Minn. Const., Art. VI, 5 ("Judges of the supreme court, the court of appeals and the district court shall be learned in the law"). And since avoiding judicial preconceptions on legal issues is neither possible nor desirable, pretending otherwise by attempting to preserve the "appearance" of that type of impartiality can hardly be a compelling state interest either. C A third possible meaning of "impartiality" (again not a common one) might be described as open mindedness. This quality in a judge demands, not that he have no preconceptions on legal issues, but that he be willing to consider views that oppose his preconceptions, and remain open to persuasion, when the issues arise in a pending case. This sort of impartiality seeks to guarantee each litigant, not an equal chance to win the legal points in the case, but at least some chance of doing so. It may well be that impartiality in this sense, and the appearance of it, are desirable in the judiciary, but we need not pursue that inquiry, since we do not believe the Minnesota Supreme Court adopted the announce clause for that purpose. Respondents argue that the announce clause serves the interest in open mindedness, or at least in the appearance of open mindedness, because it relieves a judge from pressure to rule a certain way in order to maintain consistency with 779 statements the judge has previously made. The problem is, however, that statements in election campaigns are such an infinitesimal portion of the public commitments to legal positions that judges (or judges-to-be) undertake, that this object of the prohibition is implausible. Before they arrive on the bench (whether by election or otherwise) judges have often committed themselves on legal issues that they must later rule upon. See, e. g., a case he had criticized in a book written before his appointment to the Court). More common still is a judge's confronting a legal issue on which he has expressed an opinion while on the bench. Most frequently, of course, that prior expression will have occurred in ruling on an earlier case. But judges often state their views on disputed legal issues outside the context of adjudicationin classes that they conduct, and in books and speeches. Like the ABA Codes of Judicial the Minnesota Code not only permits but encourages this. See Minn. Code of Judicial Canon 4(B) ("A judge may write, lecture, teach, speak and participate in other extra-judicial activities concerning the law"); Minn. Code of Judicial Canon 4(B), Comment. ("To the extent that time permits, a judge is encouraged to do so"). That is quite incompatible with the notion that the need for openmindedness (or for the appearance of openmindedness) lies behind the prohibition at issue here. The short of the matter is this: In Minnesota, a candidate for judicial office may not say "I think it is constitutional for the legislature to prohibit same-sex marriages." He may say the very same thing, however, up until the very day before he declares himself a candidate, and may say it repeatedly 780 (until litigation is pending) after he is elected. As a means of pursuing the objective of openmindedness that respondents now articulate, the announce clause is so woefully under inclusive as to render belief in that purpose a challenge to the credulous. See City of ; Florida 1-2 ("[A] law cannot be regarded as protecting an interest of the highest order, and thus as justifying a restriction upon truthful speech, when it leaves appreciable damage to that supposedly vital interest unprohibited" ). Justice Stevens asserts that statements made in an election campaign pose a special threat to openmindedness because the candidate, when elected judge, will have a particular reluctance to contradict them. Post, at 801. That might be plausible, perhaps, with regard to campaign promises. A candidate who says "If elected, I will vote to uphold the legislature's power to prohibit same-sex marriages" will positively be breaking his word if he does not do so (although one would be naive not to recognize that campaign promises areby long democratic traditionthe least binding form of human commitment). But, as noted earlier, the Minnesota Supreme Court has adopted a separate prohibition on campaign "pledges or promises," which is not challenged here. The proposition that judges feel significantly greater compulsion, or appear to feel significantly greater compulsion, to maintain consistency with nonpromissory statements made during a judicial campaign than with such statements made before or after the campaign is not self-evidently true. It seems to us quite likely, in fact, that in many cases the opposite is true. We doubt, for example, that a mere statement of position enunciated during the pendency of an election will be regarded by a judge as more bindingor as more likely 781 to subject him to popular disfavor if reconsideredthan a carefully considered holding that the judge set forth in an earlier opinion denying some individual's claim to justice. In any event, it suffices to say that respondents have not carried the burden imposed by our strict-scrutiny test to establish this proposition (that campaign statements are uniquely destructive of openmindedness) on which the validity of the announce clause rests. See, e. g., Landmark Communications, ; United[8] Moreover, the notion that the special context of electioneering justifies an abridgment of the right to speak out on disputed issues sets our First Amendment jurisprudence on its head. "[D]ebate on the qualifications of candidates" is "at the core of our electoral process and of the First Amendment freedoms," not at the edges. Eu, 489 U. S., at -223 "The role that elected officials play in our society makes it all the more imperative that they be allowed freely to express themselves on matters 782 of current public importance." "It is simply not the function of government to select which issues are worth discussing or debating in the course of a political campaign." We have never allowed the government to prohibit candidates from communicating relevant information to voters during an election. Justice Ginsburg would do soand much of her dissent confirms rather than refutes our conclusion that the purpose behind the announce clause is not openmindedness in the judiciary, but the undermining of judicial elections. She contends that the announce clause must be constitutional because due process would be denied if an elected judge sat in a case involving an issue on which he had previously announced his view. Post, at 816, 819. She reaches this conclusion because, she says, such a judge would have a "direct, personal, substantial, and pecuniary interest" in ruling consistently with his previously announced view, in order to reduce the risk that he will be "voted off the bench and thereby lose [his] salary and emoluments," post, at 816 (internal quotation marks and alterations omitted). But elected judgesregardless of whether they have announced any views beforehandalways face the pressure of an electorate who might disagree with their rulings and therefore vote them off the bench. Surely the judge who frees Timothy McVeigh places his job much more at risk than the judge who (horror of horrors!) reconsiders his previously announced view on a disputed legal issue. So if, as Justice Ginsburg claims, itviolates due process for a judge to sit in a case in which ruling one way rather than another increases his prospects for reelection, thenquite simplythe practice of electing judges is itself a violation of due process. It is not difficult to understand how one with these views would approve the election-nullifying effect of the announce 783 clause.[9] They are not, however, the views reflected in the Due Process Clause of the Fourteenth Amendment, which has coexisted with the election of judges ever since it was adopted, see infra, at 785-786. Justice Ginsburg devotes the rest of her dissent to attacking arguments we do not make. For example, despite the number of pages she dedicates to disproving this proposition, post, at 805-809, we neither assert nor imply that the First Amendment requires campaigns for judicial office to sound the same as those for legislative [10] What we do assert, and what Justice Ginsburg ignores, is that, even if the First Amendment allows greater regulation of judicial election campaigns than legislative election campaigns, the announce clause still fails strict scrutiny because it is woefully under inclusive, prohibiting announcements by judges (and would-be judges) only at certain times and in certain forms. We rely on the cases involving speech during elections, only to make the obvious point that this under inclusiveness cannot be explained by resort to the notion that the First Amendment provides less protection during an election campaign than at other times.[11] 784 But in any case, Justice Ginsburg greatly exaggerates the difference between judicial and legislative elections. She asserts that "the rationale underlying unconstrained speech in elections for political officethat representative government depends on the public's ability to choose agents who will act at its behestdoes not carry over to campaigns for the bench." Post, at 806. This complete separation of the judiciary from the enterprise of "representative government" might have some truth in those countries where judges neither make law themselves nor set aside the laws enacted by the legislature. It is not a true picture of the American system. Not only do state-court judges possess the power to "make" common law, but they have the immense power to shape the States' constitutions as well. See, e. g., Which is precisely why the election of state judges became popular.[12] 785 IV To sustain the announce clause, the Eighth Circuit relied heavily on the fact that a pervasive practice of prohibiting judicial candidates from discussing disputed legal and political issues developed during the last half of the 20th -880. It is true that a "universal and longestablished" tradition of prohibiting certain conduct creates "a strong presumption" that the prohibition is constitutional: "Principles of liberty fundamental enough to have been embodied within constitutional guarantees are not readily erased from the Nation's consciousness." The practice of prohibiting speech by judicial candidates on disputed issues, however, is neither long nor universal. At the time of the founding, only Vermont (before it became a State) selected any of its judges by election. Starting with Georgia in 1812, States began to provide for judicial election, a development rapidly accelerated by Jacksonian democracy. By the time of the Civil War, the great majority of States elected their judges. E. Haynes, Selection and Tenure of Judges 99-135 (1944); Berkson, Judicial Selection in the United States: A Special Report, 64 Judicature 176 (1980). We know of no restrictions upon statements that could be made by judicial candidates (including judges) throughout the 19th and the first quarter of the 20th Indeed, judicial elections were generally partisan during this period, the movement toward nonpartisan judicial elections not even beginning until the 1870's. ; 786 M. Comisky & P. Patterson, The JudiciarySelection, Compensation, Ethics, and Discipline 4, 7 (1987). Thus, not only were judicial candidates (including judges) discussing disputed legal and political issues on the campaign trail, but they were touting party affiliations and angling for party nominations all the while. The first code regulating judicial conduct was adopted by the ABA in 1924. 48 ABA Reports 74 (report of Chief Justice Taft); P. McFadden, Electing Justice: The Law and Ethics of Judicial Election Campaigns 86 (1990). It contained a provision akin to the announce clause: "A candidate for judicial position should not announce in advance his conclusions of law on disputed issues to secure class support" ABA Canon of Judicial Ethics 30 (1924). The States were slow to adopt the canons, however. "By the end of World War II, the canons were binding by the bar associations or supreme courts of only eleven states." J. MacKenzie, The Appearance of Justice 191 (1974). Even today, although a majority of States have adopted either the announce clause or its 1990 ABA successor, adoption is not unanimous. Of the 31 States that select some or all of their appellate and general-jurisdiction judges by election, see American Judicature Society, Judicial Selection in the States: Appellate and General Jurisdiction Courts 4 have adopted no candidate-speech restriction comparable to the announce clause,[13] and 1 prohibits only the discussion of "pending litigation."[14] This practice, relatively new to judicial elections and still not universally adopted, does not compare well with the traditions deemed worthy of our attention in prior cases. E. g., ; ; at (crediting tradition of prohibiting anonymous election literature, which again began in 1890 and was universally adopted). * * * There is an obvious tension between the article of Minnesota's popularly approved Constitution which provides that judges shall be elected, and the Minnesota Supreme Court's announce clause which places most subjects of interest to the voters off limits. (The candidate-speech restrictions of all the other States that have them are also the product of judicial fiat.[15]) The disparity is perhaps unsurprising, since the ABA, which originated the announce clause, has long been an opponent of judicial elections. See ABA Model Code of Judicial Canon 5(C)(2), Comment ("[M]erit selection of judges is a preferable manner in which to select the judiciary"); An Independent Judiciary: Report of the ABA Commission on Separation of Powers and Judicial Independence 96 ("The American Bar Association strongly endorses the merit selection of judges, as opposed to their election Five times between August 1972 and August 1984 the House of Delegates has approved recommendations stating the preference for merit selection and encouraging bar associations in jurisdictions where judges are elected to work for the adoption of merit selection and retention"). That opposition may be well taken (it certainly had the support *788 of the Founders of the Federal Government), but the First Amendment does not permit it to achieve its goal by leaving the principle of elections in place while preventing candidates from discussing what the elections are about. "[T]he greater power to dispense with elections altogether does not include the lesser power to conduct elections under conditions of state-imposed voter ignorance. If the State chooses to tap the energy and the legitimizing power of the democratic process, it must accord the participants in that process the First Amendment rights that attach to their roles." ; accord, The Minnesota Supreme Court's canon of judicial conduct prohibiting candidates for judicial election from announcing their views on disputed legal and political issues violates the First Amendment. Accordingly, we reverse the grant of summary judgment to respondents and remand the case for proceedings consistent with this opinion. It is so ordered.	1,932
Justice O'Connor	concurring	false	Republican Party of Minn. v. White	2002-06-27	null	https://www.courtlistener.com/opinion/121170/republican-party-of-minn-v-white/	https://www.courtlistener.com/api/rest/v3/clusters/121170/	2,002	2001-082	2	5	4	I join the opinion of the Court but write separately to express my concerns about judicial elections generally. Respondents claim that "[t]he Announce Clause is necessary . . . to protect the State's compelling governmental interes[t] in an actual and perceived . . . impartial judiciary." Brief for Respondents 8. I am concerned that, even aside from what judicial candidates may say while campaigning, the very practice of electing judges undermines this interest. We of course want judges to be impartial, in the sense of being free from any personal stake in the outcome of the cases to which they are assigned. But if judges are subject to regular elections they are likely to feel that they have at 789 least some personal stake in the outcome of every publicized case. Elected judges cannot help being aware that if the public is not satisfied with the outcome of a particular case, it could hurt their reelection prospects. See Eule, Crocodiles in the Bathtub: State Courts, Voter Initiatives and the Threat of Electoral Reprisal, 65 U. Colo. L. Rev. 733, 739 (1994) (quoting former California Supreme Court Justice Otto Kaus' statement that ignoring the political consequences of visible decisions is "`like ignoring a crocodile in your bathtub' "); Bright & Keenan, Judges and the Politics of Death: Deciding Between the Bill of Rights and the Next Election in Capital Cases, 75 B. U. L. Rev. 759, 793-794 (1995) (citing statistics indicating that judges who face elections are far more likely to override jury sentences of life without parole and impose the death penalty than are judges who do not run for election). Even if judges were able to suppress their awareness of the potential electoral consequences of their decisions and refrain from acting on it, the public's confidence in the judiciary could be undermined simply by the possibility that judges would be unable to do so. Moreover, contested elections generally entail campaigning. And campaigning for a judicial post today can require substantial funds. See Schotland, Financing Judicial Elections, 2000: Change and Challenge, 2001 L. Rev. Mich. State U. Detroit College of Law 849, 866 (reporting that in 2000, the 13 candidates in a partisan election for 5 seats on the Alabama Supreme Court spent an average of $1,092,076 on their campaigns); American Bar Association, Report and Recommendations of the Task Force on Lawyers' Political Contributions, pt. 2 (July 1998) (reporting that in 1995, one candidate for the Pennsylvania Supreme Court raised $1,848,142 in campaign funds, and that in 1986, $2,700,000 was spent on the race for Chief Justice of the Ohio Supreme Court). Unless the pool of judicial candidates is limited to those wealthy enough to independently fund their campaigns, a limitation unrelated to judicial skill, the cost of 790 campaigning requires judicial candidates to engage in fundraising. Yet relying on campaign donations may leave judges feeling indebted to certain parties or interest groups. See Thomas, National L. J., Mar. 16, 1998, p. A8, col. 1 (reporting that a study by the public interest group Texans for Public Justice found that 40 percent of the $9,200,000 in contributions of $100 or more raised by seven of Texas' nine Supreme Court justices for their 1994 and 1996 elections "came from parties and lawyers with cases before the court or contributors closely linked to these parties"). Even if judges were able to refrain from favoring donors, the mere possibility that judges' decisions may be motivated by the desire to repay campaign contributors is likely to undermine the public's confidence in the judiciary. See Greenberg Quinlan Rosner Research, Inc., and American Viewpoint, National Public Opinion Survey Frequency Questionnaire 4 (2001) (available at http://www.justiceatstake. org/files/JAS National Survey Results.pdf) (describing survey results indicating that 76 percent of registered voters believe that campaign contributions influence judicial decisions); id., at 7 (describing survey results indicating that two-thirds of registered voters believe individuals and groups who give money to judicial candidates often receive favorable treatment); Barnhizer, "On the Make": Campaign Funding and the Corrupting of the American Judiciary, 50 Cath. U. L. Rev. 361, 379 (2001) (relating anecdotes of lawyers who felt that their contributions to judicial campaigns affected their chance of success in court). Despite these significant problems, 39 States currently employ some form of judicial elections for their appellate courts, general jurisdiction trial courts, or both. American Judicature Society, Judicial Selection in the States: Appellate and General Jurisdiction Courts (Apr. 2002). Judicial elections were not always so prevalent. The first 29 States of the Union adopted methods for selecting judges that did not involve popular elections. See Croley, The Majoritarian Difficulty: 791 Elective Judiciaries and the Rule of Law, 62 U. Chi. L. Rev. 689, 716 (1995). As the Court explains, however, beginning with Georgia in 1812, States began adopting systems for judicial elections. See ante, at 785. From the 1830's until the 1850's, as part of the Jacksonian movement toward greater popular control of public office, this trend accelerated, see Goldschmidt, Merit Selection: Current Status, Procedures, and Issues, 49 U. Miami L. Rev. 1, 5 (1994), and by the Civil War, 22 of the 34 States elected their judges, ibid. By the beginning of the 20th century, however, elected judiciaries increasingly came to be viewed as incompetent and corrupt, and criticism of partisan judicial elections mounted. Croley, supra, at 723. In 1906, Roscoe Pound gave a speech to the American Bar Association in which he claimed that "compelling judges to become politicians, in many jurisdictions has almost destroyed the traditional respect for the bench." The Causes of Popular Dissatisfaction with the Administration of Justice, 8 Baylor L. Rev. 1, 23 (1956) (reprinting Pound's speech). In response to such concerns, some States adopted a modified system of judicial selection that became known as the Missouri Plan (because Missouri was the first State to adopt it for most of its judicial posts). See Croley, 62 U. Chi. L. Rev., at 724. Under the Missouri Plan, judges are appointed by a high elected official, generally from a list of nominees put together by a nonpartisan nominating commission, and then subsequently stand for unopposed retention elections in which voters are asked whether the judges should be recalled. Ibid. If a judge is recalled, the vacancy is filled through a new nomination and appointment. Ibid. This system obviously reduces threats to judicial impartiality, even if it does not eliminate all popular pressure on judges. See Grodin, Developing a Consensus of Constraint: A Judge's Perspective on Judicial Retention Elections, 61 S. Cal. L. Rev. 1969, 1980 (1988) (admitting that he cannot be sure that his votes as a California Supreme Court Justice 792 in "critical cases" during 1986 were not influenced subconsciously by his awareness that the outcomes could affect his chances in the retention elections being conducted that year). The Missouri Plan is currently used to fill at least some judicial offices in 15 States. Croley, supra, at 725-726; American Judicature Society, supra. Thirty-one States, however, still use popular elections to select some or all of their appellate and/or general jurisdiction trial court judges, who thereafter run for reelection periodically. Ibid. Of these, slightly more than half use nonpartisan elections, and the rest use partisan elections. Ibid. Most of the States that do not have any form of judicial elections choose judges through executive nomination and legislative confirmation. See Croley, supra, at 725. Minnesota has chosen to select its judges through contested popular elections instead of through an appointment system or a combined appointment and retention election system along the lines of the Missouri Plan. In doing so the State has voluntarily taken on the risks to judicial bias described above. As a result, the State's claim that it needs to significantly restrict judges' speech in order to protect judicial impartiality is particularly troubling. If the State has a problem with judicial impartiality, it is largely one the State brought upon itself by continuing the practice of popularly electing judges.	I join the opinion of the Court but write separately to express my concerns about judicial elections generally. Respondents claim that "[t]he Announce Clause is necessary to protect the State's compelling governmental interes[t] in an actual and perceived impartial judiciary." Brief for Respondents 8. I am concerned that, even aside from what judicial candidates may say while campaigning, the very practice of electing judges undermines this interest. We of course want judges to be impartial, in the sense of being free from any personal stake in the outcome of the cases to which they are assigned. But if judges are subject to regular elections they are likely to feel that they have at 789 least some personal stake in the outcome of every publicized case. Elected judges cannot help being aware that if the public is not satisfied with the outcome of a particular case, it could hurt their reelection prospects. See Eule, Crocodiles in the Bathtub: State Courts, Voter Initiatives and the Threat of Electoral Reprisal, ; Bright & Keenan, Judges and the Politics of Death: Deciding Between the Bill of Rights and the Next Election in Capital Cases, 7 B. U. L. Rev. 79, 793-794 (citing statistics indicating that judges who face elections are far more likely to override jury sentences of life without parole and impose the death penalty than are judges who do not run for election). Even if judges were able to suppress their awareness of the potential electoral consequences of their decisions and refrain from acting on it, the public's confidence in the judiciary could be undermined simply by the possibility that judges would be unable to do so. Moreover, contested elections generally entail campaigning. And campaigning for a judicial post today can require substantial funds. See Schotland, Financing Judicial Elections, 2000: Change and Challenge, 2001 L. Rev. Mich. State U. Detroit College of Law 849, 866 (reporting that in 2000, the 13 candidates in a partisan election for seats on the Alabama Supreme Court spent an average of $1,092,076 on their campaigns); American Bar Association, Report and Recommendations of the Task Force on Lawyers' Political Contributions, pt. 2 (July 1998) (reporting that in 199, one candidate for the Pennsylvania Supreme Court raised $1,848,142 in campaign funds, and that in 1986, $2,700,000 was spent on the race for Chief Justice of the Ohio Supreme Court). Unless the pool of judicial candidates is limited to those wealthy enough to independently fund their campaigns, a limitation unrelated to judicial skill, the cost of 790 campaigning requires judicial candidates to engage in fundraising. Yet relying on campaign donations may leave judges feeling indebted to certain parties or interest groups. See Thomas, National L. J., Mar. 16, 1998, p. A8, col. 1 (reporting that a study by the public interest group Texans for Public Justice found that 40 percent of the $9,200,000 in contributions of $100 or more raised by seven of Texas' nine Supreme Court justices for their 1994 and 1996 elections "came from parties and lawyers with cases before the court or contributors closely linked to these parties"). Even if judges were able to refrain from favoring donors, the mere possibility that judges' decisions may be motivated by the desire to repay campaign contributors is likely to undermine the public's confidence in the judiciary. See Greenberg Quinlan Rosner Research, Inc., and American Viewpoint, National Public Opinion Survey Frequency Questionnaire 4 (available at http://www.justiceatstake. org/files/JAS National Survey Results.pdf) (describing survey results indicating th6 percent of registered voters believe that campaign contributions influence judicial decisions); ; Barnhizer, "On the Make": Campaign Funding and the Corrupting of the American Judiciary, Despite these significant problems, 39 States currently employ some form of judicial elections for their appellate courts, general jurisdiction trial courts, or both. American Judicature Judicial Selection in the States: Appellate and General Jurisdiction Courts (Apr. 2002). Judicial elections were not always so prevalent. The first 29 States of the Union adopted methods for selecting judges that did not involve popular elections. See The Majoritarian Difficulty: *791 Elective Judiciaries and the Rule of Law, As the Court explains, however, beginning with Georgia in 1812, States began adopting systems for judicial elections. See ante, 8. From the 1830's until the 180's, as part of the Jacksonian movement toward greater popular control of public office, this trend accelerated, see Goldschmidt, Merit Selection: Current Status, Procedures, and Issues, and by the Civil War, 22 of the 34 States elected their judges, By the beginning of the 20th century, however, elected judiciaries increasingly came to be viewed as incompetent and corrupt, and criticism of partisan judicial elections mounted. In 1906, Roscoe Pound gave a speech to the American Bar Association in which he claimed that "compelling judges to become politicians, in many jurisdictions has almost destroyed the traditional respect for the bench." The Causes of Popular Dissatisfaction with the Administration of Justice, (196) In response to such concerns, some States adopted a modified system of judicial selection that became known as the Missouri Plan (because Missouri was the first State to adopt it for most of its judicial posts). See 62 U. Chi. L. Rev., 24. Under the Missouri Plan, judges are appointed by a high elected official, generally from a list of nominees put together by a nonpartisan nominating commission, and then subsequently stand for unopposed retention elections in which voters are asked whether the judges should be recalled. If a judge is recalled, the vacancy is filled through a new nomination and appointment. This system obviously reduces threats to judicial impartiality, even if it does not eliminate all popular pressure on judges. See Grodin, Developing a Consensus of Constraint: A Judge's Perspective on Judicial Retention Elections, The Missouri Plan is currently used to fill at least some judicial offices in 1 States. 2-726; American Judicature Thirty-one States, however, still use popular elections to select some or all of their appellate and/or general jurisdiction trial court judges, who thereafter run for reelection periodically. Of these, slightly more than half use nonpartisan elections, and the rest use partisan elections. Most of the States that do not have any form of judicial elections choose judges through executive nomination and legislative confirmation. See 2. Minnesota has chosen to select its judges through contested popular elections instead of through an appointment system or a combined appointment and retention election system along the lines of the Missouri Plan. In doing so the State has voluntarily taken on the risks to judicial bias described above. As a result, the State's claim that it needs to significantly restrict judges' speech in order to protect judicial impartiality is particularly troubling. If the State has a problem with judicial impartiality, it is largely one the State brought upon itself by continuing the practice of popularly electing judges.	1,933
Justice Stevens	dissenting	false	Republican Party of Minn. v. White	2002-06-27	null	https://www.courtlistener.com/opinion/121170/republican-party-of-minn-v-white/	https://www.courtlistener.com/api/rest/v3/clusters/121170/	2,002	2001-082	2	5	4	In her dissenting opinion, Justice Ginsburg has cogently explained why the Court's holding is unsound. I therefore join her opinion without reservation. I add these comments to emphasize the force of her arguments and to explain why I find the Court's reasoning even more troubling than its holding. The limits of the Court's holding are evident: Even if the Minnesota Lawyers Professional Responsibility Board (Board) may not sanction a judicial candidate for announcing his views on issues likely to come before him, it may surely advise the electorate that such announcements demonstrate the speaker's unfitness for judicial office. If the solution to harmful speech must be more speech, so be it. The Court's reasoning, however, will unfortunately endure beyond the next election cycle. By obscuring the fundamental distinction between campaigns for the judiciary and the political branches, and by failing to recognize the difference between statements made in articles or opinions and those made on the campaign trail, the Court defies any sensible notion of the judicial office and the importance of impartiality in that context. The Court's disposition rests on two seriously flawed premisesan inaccurate appraisal of the importance of judicial independence and impartiality, and an assumption that judicial candidates should have the same freedom "`to express themselves on matters of current public importance' " as do all other elected officials. Ante, at 781-782. Elected judges, no less than appointed judges, occupy an office of trust that is fundamentally different from that occupied by policymaking officials. Although the fact that they must stand for election makes their job more difficult than that of the tenured judge, that fact does not lessen their duty to respect essential attributes of the judicial office that have been embedded in Anglo-American law for centuries. 798 There is a critical difference between the work of the judge and the work of other public officials. In a democracy, issues of policy are properly decided by majority vote; it is the business of legislators and executives to be popular. But in litigation, issues of law or fact should not be determined by popular vote; it is the business of judges to be indifferent to unpopularity. Sir Matthew Hale pointedly described this essential attribute of the judicial office in words which have retained their integrity for centuries: "`11. That popular or court applause or distaste have no influence in anything I do, in point of distribution of justice. "`12. Not to be solicitous what men will say or think, so long as I keep myself exactly according to the rule of justice.' "[1] Consistent with that fundamental attribute of the office, countless judges in countless cases routinely make rulings that are unpopular and surely disliked by at least 50 percent of the litigants who appear before them. It is equally common for them to enforce rules that they think unwise, or that are contrary to their personal predilections. For this reason, opinions that a lawyer may have expressed before becoming a judge, or a judicial candidate, do not disqualify anyone for judicial service because every good judge is fully aware of the distinction between the law and a personal point of view. It is equally clear, however, that such expressions after a lawyer has been nominated to judicial office shed little, if any, light on his capacity for judicial service. Indeed, to the extent that such statements seek to enhance the popularity of the candidate by indicating how he would rule in specific cases if elected, they evidence a lack of fitness for the office. 799 Of course, any judge who faces reelection may believe that he retains his office only so long as his decisions are popular. Nevertheless, the elected judge, like the lifetime appointee, does not serve a constituency while holding that office. He has a duty to uphold the law and to follow the dictates of the Constitution. If he is not a judge on the highest court in the State, he has an obligation to follow the precedent of that court, not his personal views or public opinion polls.[2] He may make common law, but judged on the merits of individual cases, not as a mandate from the voters. By recognizing a conflict between the demands of electoral politics and the distinct characteristics of the judiciary, we 800 do not have to put States to an all or nothing choice of abandoning judicial elections or having elections in which anything goes. As a practical matter, we cannot know for sure whether an elected judge's decisions are based on his interpretation of the law or political expediency. In the absence of reliable evidence one way or the other, a State may reasonably presume that elected judges are motivated by the highest aspirations of their office. But we do know that a judicial candidate, who announces his views in the context of a campaign, is effectively telling the electorate: "Vote for me because I believe X, and I will judge cases accordingly." Once elected, he may feel free to disregard his campaign statements, ante, at 780-781, but that does not change the fact that the judge announced his position on an issue likely to come before him as a reason to vote for him. Minnesota has a compelling interest in sanctioning such statements. A candidate for judicial office who goes beyond the expression of "general observation about the law . . . in order to obtain favorable consideration" of his candidacy, Laird v. Tatum, 409 U.S. 824, 836, n. 5 (1972) (memorandum of Rehnquist, J., on motion for recusal), demonstrates either a lack of impartiality or a lack of understanding of the importance of maintaining public confidence in the impartiality of the judiciary. It is only by failing to recognize the distinction, clearly stated by then-Justice Rehnquist, between statements made during a campaign or confirmation hearing and those made before announcing one's candidacy, that the Court is able to conclude: "[S]ince avoiding judicial preconceptions on legal issues is neither possible nor desirable, pretending otherwise by attempting to preserve the `appearance' of that type of impartiality can hardly be a compelling state interest either," ante, at 778. Even when "impartiality" is defined in its narrowest sense to embrace only "the lack of bias for or against either party to the proceeding," ante, at 775, the announce clause serves that interest. Expressions that stress a candidate's unbroken 801 record of affirming convictions for rape,[3] for example, imply a bias in favor of a particular litigant (the prosecutor) and against a class of litigants (defendants in rape cases). Contrary to the Court's reasoning in its first attempt to define impartiality, ante, at 775-776, an interpretation of the announce clause that prohibits such statements serves the State's interest in maintaining both the appearance of this form of impartiality and its actuality. When the Court evaluates the importance of impartiality in its broadest sense, which it describes as "the interest in openmindedness, or at least in the appearance of openmindedness," ante, at 778, it concludes that the announce clause is "so woefully underinclusive as to render belief in that purpose a challenge to the credulous," ante, at 780. It is under inclusive, in the Court's view, because campaign statements are an infinitesimal portion of the public commitments to legal positions that candidates make during their professional careers. It is not, however, the number of legal views that a candidate may have formed or discussed in his prior career that is significant. Rather, it is the ability both to reevaluate them in the light of an adversarial presentation, and to apply the governing rule of law even when inconsistent with those views, that characterize judicial openmindedness. The Court boldly asserts that respondents have failed to carry their burden of demonstrating "that campaign statements are uniquely destructive of openmindedness," ante, at 781. But the very purpose of most statements prohibited by the announce clause is to convey the message that the candidate's mind is not open on a particular issue. The lawyer who writes an article advocating harsher penalties for polluters surely does not commit to that position to the same degree as the candidate who says "vote for me because I believe all polluters deserve harsher penalties." At the 802 very least, such statements obscure the appearance of openmindedness. More importantly, like the reasoning in the Court's opinion, they create the false impression that the standards for the election of political candidates apply equally to candidates for judicial office.[4] The Court seems to have forgotten its prior evaluation of the importance of maintaining public confidence in the "disinterestedness" of the judiciary. Commenting on the danger that participation by judges in a political assignment might erode that public confidence, we wrote: "While the problem of individual bias is usually cured through recusal, no such mechanism can overcome the appearance of institutional partiality that may arise from judiciary involvement in the making of policy. The legitimacy of the Judicial Branch ultimately depends on its reputation for impartiality and nonpartisanship. That reputation may not be borrowed by the political Branches to cloak their work in the neutral colors of judicial action." Mistretta v. United States, 488 U.S. 361, 407 (1989). Conversely, the judicial reputation for impartiality and openmindedness is compromised by electioneering that emphasizes the candidate's personal predilections rather than his qualifications for judicial office. As an elected judge recently noted: "Informed criticism of court rulings, or of the professional or personal conduct of judges, should play an 803 important role in maintaining judicial accountability. However, attacking courts and judgesnot because they are wrong on the law or the facts of a case, but because the decision is considered wrong simply as a matter of political judgmentmaligns one of the basic tenets of judicial independenceintellectual honesty and dedication to enforcement of the rule of law regardless of popular sentiment. Dedication to the rule of law requires judges to rise above the political moment in making judicial decisions. What is so troubling about criticism of court rulings and individual judges based solely on political disagreement with the outcome is that it evidences a fundamentally misguided belief that the judicial branch should operate and be treated just like another constituency-driven political arm of government. Judges should not have `political constituencies.' Rather, a judge's fidelity must be to enforcement of the rule of law regardless of perceived popular will." De Muniz, Politicizing State Judicial Elections: A Threat to Judicial Independence, 38 Willamette L. Rev. 367, 387 (2002). The disposition of this case on the flawed premise that the criteria for the election to judicial office should mirror the rules applicable to political elections is profoundly misguided. I therefore respectfully dissent.	In her dissenting opinion, Justice Ginsburg has cogently explained why the Court's holding is unsound. I therefore join her opinion without reservation. I add these comments to emphasize the force of her arguments and to explain why I find the Court's reasoning even more troubling than its holding. The limits of the Court's holding are evident: Even if the Minnesota Lawyers Professional Responsibility Board (Board) may not sanction a judicial candidate for announcing his views on issues likely to come before him, it may surely advise the electorate that such announcements demonstrate the speaker's unfitness for judicial office. If the solution to harmful speech must be more speech, so be it. The Court's reasoning, however, will unfortunately endure beyond the next election cycle. By obscuring the fundamental distinction between campaigns for the judiciary and the political branches, and by failing to recognize the difference between statements made in articles or opinions and those made on the campaign trail, the Court defies any sensible notion of the judicial office and the importance of impartiality in that context. The Court's disposition rests on two seriously flawed premisesan inaccurate appraisal of the importance of judicial independence and impartiality, and an assumption that judicial candidates should have the same freedom "`to express themselves on matters of current public importance' " as do all other elected officials. Ante, at 781-782. Elected judges, no less than appointed judges, occupy an office of trust that is fundamentally different from that occupied by policymaking officials. Although the fact that they must stand for election makes their job more difficult than that of the tenured judge, that fact does not lessen their duty to respect essential attributes of the judicial office that have been embedded in Anglo-American law for centuries. 798 There is a critical difference between the work of the judge and the work of other public officials. In a democracy, issues of policy are properly decided by majority vote; it is the business of legislators and executives to be popular. But in litigation, issues of law or fact should not be determined by popular vote; it is the business of judges to be indifferent to unpopularity. Sir Matthew Hale pointedly described this essential attribute of the judicial office in words which have retained their integrity for centuries: "`11. That popular or court applause or distaste have no influence in anything I do, in point of distribution of justice. "`12. Not to be solicitous what men will say or think, so long as I keep myself exactly according to the rule of justice.' "[1] Consistent with that fundamental attribute of the office, countless judges in countless cases routinely make rulings that are unpopular and surely disliked by at least 50 percent of the litigants who appear before them. It is equally common for them to enforce rules that they think unwise, or that are contrary to their personal predilections. For this reason, opinions that a lawyer may have expressed before becoming a judge, or a judicial candidate, do not disqualify anyone for judicial service because every good judge is fully aware of the distinction between the law and a personal point of view. It is equally clear, however, that such expressions after a lawyer has been nominated to judicial office shed little, if any, light on his capacity for judicial service. Indeed, to the extent that such statements seek to enhance the popularity of the candidate by indicating how he would rule in specific cases if elected, they evidence a lack of fitness for the office. 799 Of course, any judge who faces reelection may believe that he retains his office only so long as his decisions are popular. Nevertheless, the elected judge, like the lifetime appointee, does not serve a constituency while holding that office. He has a duty to uphold the law and to follow the dictates of the Constitution. If he is not a judge on the highest court in the State, he has an obligation to follow the precedent of that court, not his personal views or public opinion polls.[2] He may make common law, but judged on the merits of individual cases, not as a mandate from the voters. By recognizing a conflict between the demands of electoral politics and the distinct characteristics of the judiciary, we 800 do not have to put States to an all or nothing choice of abandoning judicial elections or having elections in which anything goes. As a practical matter, we cannot know for sure whether an elected judge's decisions are based on his interpretation of the law or political expediency. In the absence of reliable evidence one way or the other, a State may reasonably presume that elected judges are motivated by the highest aspirations of their office. But we do know that a judicial candidate, who announces his views in the context of a campaign, is effectively telling the electorate: "Vote for me because I believe X, and I will judge cases accordingly." Once elected, he may feel free to disregard his campaign statements, ante, at 780-781, but that does not change the fact that the judge announced his position on an issue likely to come before him as a reason to vote for him. Minnesota has a compelling interest in sanctioning such statements. A candidate for judicial office who goes beyond the expression of "general observation about the law in order to obtain favorable consideration" of his candidacy, demonstrates either a lack of impartiality or a lack of understanding of the importance of maintaining public confidence in the impartiality of the judiciary. It is only by failing to recognize the distinction, clearly stated by then-Justice Rehnquist, between statements made during a campaign or confirmation hearing and those made before announcing one's candidacy, that the Court is able to conclude: "[S]ince avoiding judicial preconceptions on legal issues is neither possible nor desirable, pretending otherwise by attempting to preserve the `appearance' of that type of impartiality can hardly be a compelling state interest either," ante, at 778. Even when "impartiality" is defined in its narrowest sense to embrace only "the lack of bias for or against either party to the proceeding," ante, at 775, the announce clause serves that interest. Expressions that stress a candidate's unbroken 801 record of affirming convictions for rape,[3] for example, imply a bias in favor of a particular litigant (the prosecutor) and against a class of litigants (defendants in rape cases). Contrary to the Court's reasoning in its first attempt to define impartiality, ante, at 775-776, an interpretation of the announce clause that prohibits such statements serves the State's interest in maintaining both the appearance of this form of impartiality and its actuality. When the Court evaluates the importance of impartiality in its broadest sense, which it describes as "the interest in openmindedness, or at least in the appearance of openmindedness," ante, at 778, it concludes that the announce clause is "so woefully underinclusive as to render belief in that purpose a challenge to the credulous," ante, at 780. It is under inclusive, in the Court's view, because campaign statements are an infinitesimal portion of the public commitments to legal positions that candidates make during their professional careers. It is not, however, the number of legal views that a candidate may have formed or discussed in his prior career that is significant. Rather, it is the ability both to reevaluate them in the light of an adversarial presentation, and to apply the governing rule of law even when inconsistent with those views, that characterize judicial openmindedness. The Court boldly asserts that respondents have failed to carry their burden of demonstrating "that campaign statements are uniquely destructive of openmindedness," ante, at 781. But the very purpose of most statements prohibited by the announce clause is to convey the message that the candidate's mind is not open on a particular issue. The lawyer who writes an article advocating harsher penalties for polluters surely does not commit to that position to the same degree as the candidate who says "vote for me because I believe all polluters deserve harsher penalties." At the 802 very least, such statements obscure the appearance of openmindedness. More importantly, like the reasoning in the Court's opinion, they create the false impression that the standards for the election of political candidates apply equally to candidates for judicial office.[4] The Court seems to have forgotten its prior evaluation of the importance of maintaining public confidence in the "disinterestedness" of the judiciary. Commenting on the danger that participation by judges in a political assignment might erode that public confidence, we wrote: "While the problem of individual bias is usually cured through recusal, no such mechanism can overcome the appearance of institutional partiality that may arise from judiciary involvement in the making of policy. The legitimacy of the Judicial Branch ultimately depends on its reputation for impartiality and nonpartisanship. That reputation may not be borrowed by the political Branches to cloak their work in the neutral colors of judicial action." Conversely, the judicial reputation for impartiality and openmindedness is compromised by electioneering that emphasizes the candidate's personal predilections rather than his qualifications for judicial office. As an elected judge recently noted: "Informed criticism of court rulings, or of the professional or personal conduct of judges, should play an 803 important role in maintaining judicial accountability. However, attacking courts and judgesnot because they are wrong on the law or the facts of a case, but because the decision is considered wrong simply as a matter of political judgmentmaligns one of the basic tenets of judicial independenceintellectual honesty and dedication to enforcement of the rule of law regardless of popular sentiment. Dedication to the rule of law requires judges to rise above the political moment in making judicial decisions. What is so troubling about criticism of court rulings and individual judges based solely on political disagreement with the outcome is that it evidences a fundamentally misguided belief that the judicial branch should operate and be treated just like another constituency-driven political arm of government. Judges should not have `political constituencies.' Rather, a judge's fidelity must be to enforcement of the rule of law regardless of perceived popular will." De Muniz, Politicizing State Judicial Elections: A Threat to Judicial Independence, The disposition of this case on the flawed premise that the criteria for the election to judicial office should mirror the rules applicable to political elections is profoundly misguided. I therefore respectfully dissent.	1,934
Justice Ginsburg	second_dissenting	false	Republican Party of Minn. v. White	2002-06-27	null	https://www.courtlistener.com/opinion/121170/republican-party-of-minn-v-white/	https://www.courtlistener.com/api/rest/v3/clusters/121170/	2,002	2001-082	2	5	4	Whether state or federal, elected or appointed, judges perform a function fundamentally different from that of the people's elected representatives. Legislative and executive officials act on behalf of the voters who placed them in office; "judge[s] represen[t] the Law." Chisom v. Roemer, 501 U.S. 380, 411 (1991) (Scalia, J., dissenting). Unlike their counterparts in the political branches, judges are expected to 804 refrain from catering to particular constituencies or committing themselves on controversial issues in advance of adversarial presentation. Their mission is to decide "individual cases and controversies" on individual records, Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 266 (1995) (Stevens, J., dissenting), neutrally applying legal principles, and, when necessary, "stand[ing] up to what is generally supreme in a democracy: the popular will," Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175, 1180 (1989). A judiciary capable of performing this function, owing fidelity to no person or party, is a "longstanding AngloAmerican tradition," United States v. Will, 449 U.S. 200, 217 (1980), an essential bulwark of constitutional government, a constant guardian of the rule of law. The guarantee of an independent, impartial judiciary enables society to "withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts." West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 638 (1943). "Without this, all the reservations of particular rights or privileges would amount to nothing." The Federalist No. 78, p. 466 (C. Rossiter ed. 1961). The ability of the judiciary to discharge its unique role rests to a large degree on the manner in which judges are selected. The Framers of the Federal Constitution sought to advance the judicial function through the structural protections of Article III, which provide for the selection of judges by the President on the advice and consent of the Senate, generally for lifetime terms. Through its own Constitution, Minnesota, in common with most other States, has decided to allow its citizens to choose judges directly in periodic elections. But Minnesota has not thereby opted to install a corps of political actors on the bench; rather, it has endeavored to preserve the integrity of its judiciary by other means. Recognizing that the influence of political parties is incompatible with the judge's role, for example, Minnesota 805 has designated all judicial elections nonpartisan. See Peterson v. Stafford, 490 N.W.2d 418, 425 (Minn. 1992). And it has adopted a provision, here called the Announce Clause, designed to prevent candidates for judicial office from "publicly making known how they would decide issues likely to come before them as judges." Republican Party of Minn. v. Kelly, 247 F.3d 854, 881-882 (CA8 2001). The question this case presents is whether the First Amendment stops Minnesota from furthering its interest in judicial integrity through this precisely targeted speech restriction. I The speech restriction must fail, in the Court's view, because an electoral process is at stake; if Minnesota opts to elect its judges, the Court asserts, the State may not rein in what candidates may say. See ante, at 781 (notion that "right to speak out on disputed issues" may be abridged in an election context "sets our First Amendment jurisprudence on its head"); ante, at 787-788 (power to dispense with elections does not include power to curtail candidate speech if State leaves election process in place); 247 F.3d, at 897 (Beam, J., dissenting) ("[W]hen a state opts to hold an election, it must commit itself to a complete election, replete with free speech and association."); id., at 903 (same). I do not agree with this unilocular, "an election is an election," approach. Instead, I would differentiate elections for political offices, in which the First Amendment holds full sway, from elections designed to select those whose office it is to administer justice without respect to persons. Minnesota's choice to elect its judges, I am persuaded, does not preclude the State from installing an election process geared to the judicial office. Legislative and executive officials serve in representative capacities. They are agents of the people; their primary function is to advance the interests of their constituencies. Candidates for political offices, in keeping with their representative 806 role, must be left free to inform the electorate of their positions on specific issues. Armed with such information, the individual voter will be equipped to cast her ballot intelligently, to vote for the candidate committed to positions the voter approves. Campaign statements committing the candidate to take sides on contentious issues are therefore not only appropriate in political elections; they are "at the core of our electoral process," Williams v. Rhodes, 393 U.S. 23, 32 (1968), for they "enhance the accountability of government officials to the people whom they represent," Brown v. Hartlage, 456 U.S. 45, 55 (1982). Judges, however, are not political actors. They do not sit as representatives of particular persons, communities, or parties; they serve no faction or constituency. "[I]t is the business of judges to be indifferent to popularity." Chisom, 501 U. S., at 401, n. 29 (internal quotation marks omitted). They must strive to do what is legally right, all the more so when the result is not the one "the home crowd" wants. Rehnquist, Dedicatory Address: Act Well Your Part: Therein All Honor Lies, 7 Pepperdine L. Rev. 227, 229-300 (1980). Even when they develop common law or give concrete meaning to constitutional text, judges act only in the context of individual cases, the outcome of which cannot depend on the will of the public. See Barnette, 319 U. S., at 638 ("One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections."). Thus, the rationale underlying unconstrained speech in elections for political officethat representative government depends on the public's ability to choose agents who will act at its behestdoes not carry over to campaigns for the bench. As to persons aiming to occupy the seat of judgment, the Court's unrelenting reliance on decisions involving contests for legislative and executive posts is manifestly out of place. E. g., ante, at 781-782 (quoting Wood v. Georgia, 807 370 U.S. 375, 395 (1962) ("The role that elected officials play in our society makes it all the more imperative that they be allowed freely to express themselves on matters of current public importance." (Emphasis added.))). See O'Neil, The Canons in the Courts: Recent First Amendment Rulings, 35 Ind. L. Rev. 701, 717 (2002) (reliance on cases involving nonjudicial campaigns, particularly Brown v. Hartlage, is "grievously misplaced"; "[h]ow any thoughtful judge could derive from that ruling any possible guidance for cases that involve judicial campaign speech seems baffling"). In view of the magisterial role judges must fill in a system of justice, a role that removes them from the partisan fray, States may limit judicial campaign speech by measures impermissible in elections for political office. See Buckley v. Illinois Judicial Inquiry Bd., 997 F.2d 224, 228 (CA7 1993) ("Mode of appointment is only one factor that enables distinctions to be made among different kinds of public official. Judges remain different from legislators and executive officials, even when all are elected, in ways that bear on the strength of the state's interest in restricting their freedom of speech."). The Court sees in this conclusion, and in the Announce Clause that embraces it, "an obvious tension," ante, at 787: The Minnesota electorate is permitted to select its judges by popular vote, but is not provided information on "subjects of interest to the voters," ibid. in particular, the voters are not told how the candidate would decide controversial cases or issues if elected. This supposed tension, however, rests on the false premise that by departing from the federal model with respect to who chooses judges, Minnesota necessarily departed from the federal position on the criteria relevant to the exercise of that choice.[1] 808 The Minnesota Supreme Court thought otherwise: "The methods by which the federal system and other states initially select and then elect or retain judges are varied, yet the explicit or implicit goal of the constitutional provisions and enabling legislation is the same: to create and maintain an independent judiciary as free from political, economic and social pressure as possible so judges can decide cases without those influences." Peterson, 490 N. W. 2d, at 420. Nothing in the Court's opinion convincingly explains why Minnesota may not pursue that goal in the manner it did. Minnesota did not choose a judicial selection system with all the trappings of legislative and executive races. While providing for public participation, it tailored judicial selection to fit the character of third branch office holding. See id., at 425 (Minnesota's system "keep[s] the ultimate choice with the voters while, at the same time, recognizing the unique independent nature of the judicial function."). The balance the State sought to achieveallowing the people to elect judges, but safeguarding the process so that the integrity of the judiciary would not be compromisedshould encounter 809 no First Amendment shoal. See generally O'Neil, supra, at 715-723. II Proper resolution of this case requires correction of the Court's distorted construction of the provision before us for review. According to the Court, the Announce Clause "prohibits a judicial candidate from stating his views on any specific nonfanciful legal question within the province of the court for which he is running, except in the context of discussing past decisionsand in the latter context as well, if he expresses the view that he is not bound by stare decisis. " Ante, at 773. In two key respects, that construction misrepresents the meaning of the Announce Clause as interpreted by the Eighth Circuit and embraced by the Minnesota Supreme Court, In re Code of Judicial Conduct, 639 N.W.2d 55 (2002), which has the final word on this matter, see Hortonville Joint School Dist. No. 1 v. Hortonville Ed. Assn., 426 U.S. 482, 488 (1976) ("We are, of course, bound to accept the interpretation of [the State's] law by the highest court of the State."). First and most important, the Court ignores a crucial limiting construction placed on the Announce Clause by the courts below. The provision does not bar a candidate from generally "stating [her] views" on legal questions, ante, at 773; it prevents her from "publicly making known how [she] would decide " disputed issues, 247 F.3d, at 881-882 (emphasis added). That limitation places beyond the scope of the Announce Clause a wide range of comments that may be highly informative to voters. Consistent with the Eighth Circuit's construction, such comments may include, for example, statements of historical fact ("As a prosecutor, I obtained 15 drunk driving convictions"); qualified statements ("Judges should use sparingly their discretion to grant lenient sentences to drunk drivers"); and statements framed 810 at a sufficient level of generality ("Drunk drivers are a threat to the safety of every driver"). What remains within the Announce Clause is the category of statements that essentially commit the candidate to a position on a specific issue, such as "I think all drunk drivers should receive the maximum sentence permitted by law." See Tr. of Oral Arg. 45 (candidate may not say "`I'm going to decide this particular issue this way in the future' "). Second, the Court misportrays the scope of the Clause as applied to a candidate's discussion of past decisions. Citing an apparent concession by respondents at argument, id., at 33-34, the Court concludes that "statements critical of past judicial decisions are not permissible if the candidate also states that he is against stare decisis, " ante, at 772 (emphasis deleted). That conclusion, however, draws no force from the meaning attributed to the Announce Clause by the Eighth Circuit. In line with the Minnesota Board on Judicial Standards, the Court of Appeals stated without qualification that the Clause "does not prohibit candidates from discussing appellate court decisions." 247 F.3d, at 882 (citing Minn. Bd. on Judicial Standards, Informal Opinion, Oct. 10, 1990, App. 55 ("In all election contests, a candidate for judicial office may discuss decisions and opinions of the Appellate courts.")). The Eighth Circuit's controlling construction should not be modified by respondents' on the spot answers to fast-paced hypothetical questions at oral argument. Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 170 (1972) ("We are loath to attach conclusive weight to the relatively spontaneous responses of counsel to equally spontaneous questioning from the Court during oral argument."). The Announce Clause is thus more tightly bounded, and campaigns conducted under that provision more robust, than the Court acknowledges. Judicial candidates in Minnesota may not only convey general information about themselves, see ante, at 774, they may also describe their conception of the role of a judge and their views on a wide range of subjects 811 of interest to the voters. See App. 97-103; Brief for Minnesota State Bar Association as Amicus Curiae 22-23 (e. g., the criteria for deciding whether to depart from sentencing guidelines, the remedies for racial and gender bias, and the balance between "free speech rights [and] the need to control [hate crimes]" (internal quotation marks omitted)). Further, they may discuss, criticize, or defend past decisions of interest to voters. What candidates may not dosimply or with sophisticationis remove themselves from the constraints characteristic of the judicial office and declare how they would decide an issue, without regard to the particular context in which it is presented, sans briefs, oral argument, and, as to an appellate bench, the benefit of one's colleagues' analyses. Properly construed, the Announce Clause prohibits only a discrete subcategory of the statements the Court's misinterpretation encompasses. The Court's characterization of the Announce Clause as "election-nullifying," ante, at 782, "plac[ing] most subjects of interest to the voters off limits," ante, at 787, is further belied by the facts of this case. In his 1996 bid for office, petitioner Gregory Wersal distributed literature sharply criticizing three Minnesota Supreme Court decisions. Of the court's holding in the first casethat certain unrecorded confessions must be suppressedWersal asked, "Should we conclude that because the Supreme Court does not trust police, it allows confessed criminals to go free?" App. 37. Of the second case, invalidating a state welfare law, Wersal stated: "The Court should have deferred to the Legislature. It's the Legislature which should set our spending policies." Ibid. And of the third case, a decision involving abortion rights, Wersal charged that the court's holding was "directly contrary to the opinion of the U. S. Supreme Court," "unprecedented," and a "pro-abortion stance." Id., at 38. When a complaint was filed against Wersal on the basis of those statements, id., at 12-15, the Lawyers Professional Responsibility Board concluded that no discipline was warranted, 812 in part because it thought the disputed campaign materials did not violate the Announce Clause, id., at 20-21. And when, at the outset of his 1998 campaign, Wersal sought to avoid the possibility of sanction for future statements, he pursued the option, available to all Minnesota judicial candidates, Tr. of Oral Arg. 12-13, of requesting an advisory opinion concerning the application of the Announce Clause. App. 24-26. In response to that request, the Board indicated that it did not anticipate any adverse action against him. Id., at 31-33.[2] Wersal has thus never been sanctioned under the Announce Clause for any campaign statement he made. On the facts before us, in sum, the Announce Clause has hardly stifled the robust communication of ideas and views from judicial candidate to voter. III Even as it exaggerates the reach of the Announce Clause, the Court ignores the significance of that provision to the integrated system of judicial campaign regulation Minnesota has developed. Coupled with the Announce Clause in Minnesota's Code of Judicial Conduct is a provision that prohibits candidates from "mak[ing] pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office." Minn. Code of Judicial Conduct, Canon 5(A)(3)(d)(i) (2002). Although the Court is correct that this "pledges or promises" provision is not directly at issue in this case, see ante, at 770, the Court errs in overlooking the interdependence of that prohibition and the one before us. In my view, the constitutionality of the Announce 813 Clause cannot be resolved without an examination of that interaction in light of the interests the pledges or promises provision serves. A All parties to this case agree that, whatever the validity of the Announce Clause, the State may constitutionally prohibit judicial candidates from pledging or promising certain results. See Brief for Petitioners Republican Party of Minnesota et al. 36-37; Tr. of Oral Arg. 14-16 (petitioners' acknowledgment that candidates may be barred from making a "pledge or promise of an outcome"); Brief for Respondents 11; see also Brief for Brennan Center for Justice et al. as Amici Curiae 23 ("All of the parties and amici in this case agree that judges should not make explicit promises or commitments to decide particular cases in a particular manner."). The reasons for this agreement are apparent. Pledges or promises of conduct in office, however commonplace in races for the political branches, are inconsistent "with the judge's obligation to decide cases in accordance with his or her role." Tr. of Oral Arg. 16; see Brief for Petitioners Republican Party of Minnesota et al. 36 ("[B]ecause [judges] have a duty to decide a case on the basis of the law and facts before them, they can be prohibited, as candidates, from making such promises."). This judicial obligation to avoid prejudgment corresponds to the litigant's right, protected by the Due Process Clause of the Fourteenth Amendment, to "an impartial and disinterested tribunal in both civil and criminal cases," Marshall v. Jerrico, Inc., 446 U.S. 238, 242 (1980). The proscription against pledges or promises thus represents an accommodation of "constitutionally protected interests [that] lie on both sides of the legal equation." Nixon v. Shrink Missouri Government PAC, 528 U.S. 377, 400 (2000) (Breyer, J., concurring). Balanced against the candidate's interest in free expression is the litigant's "powerful and independent constitutional interest in fair adjudicative procedure." Marshall, 446 U. S., at 243; see Buckley, 997 F. 2d, 814 at 227 ("Two principles are in conflict and must, to the extent possible, be reconciled. . . . The roots of both principles lie deep in our constitutional heritage."). The impartiality guaranteed to litigants through the Due Process Clause adheres to a core principle: "[N]o man is permitted to try cases where he has an interest in the outcome." In re Murchison, 349 U.S. 133, 136 (1955). Our cases have "jealously guarded" that basic concept, for it "ensur[es] that no person will be deprived of his interests in the absence of a proceeding in which he may present his case with assurance that the arbiter is not predisposed to find against him." Marshall, 446 U. S., at 242. Applying this principle in Tumey v. Ohio, 273 U.S. 510 (1927), we held that due process was violated where a judge received a portion of the fines collected from defendants whom he found guilty. Such an arrangement, we said, gave the judge a "direct, personal, substantial[, and] pecuniary interest" in reaching a particular outcome and thereby denied the defendant his right to an impartial arbiter. Id., at 523. Ward v. Monroeville, 409 U.S. 57 (1972), extended Tumey `s reasoning, holding that due process was similarly violated where fines collected from guilty defendants constituted a large part of a village's finances, for which the judge, who also served as the village mayor, was responsible. Even though the mayor did not personally share in those fines, we concluded, he "perforce occupie[d] two practically and seriously inconsistent positions, one partisan and the other judicial." 409 U.S., at 60 (internal quotation marks omitted). We applied the principle of Tumey and Ward most recently in Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813 (1986). That decision invalidated a ruling of the Alabama Supreme Court written by a justice who had a personal interest in the resolution of a dispositive issue. The Alabama Supreme Court's ruling was issued while the justice was pursuing a separate lawsuit in an Alabama lower court, and its outcome "had the clear and immediate effect of enhancing both the legal status 815 and the settlement value" of that separate suit. Id., at 824. As in Ward and Tumey, we held, the justice therefore had an interest in the outcome of the decision that unsuited him to participate in the judgment. 475 U.S., at 824. It mattered not whether the justice was actually influenced by this interest; "[t]he Due Process Clause," we observed, "may sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties." Id., at 825 (internal quotation marks omitted). These cases establish three propositions important to this dispute. First, a litigant is deprived of due process where the judge who hears his case has a "direct, personal, substantial, and pecuniary" interest in ruling against him. Id., at 824 (internal quotation marks and alteration omitted). Second, this interest need not be as direct as it was in Tumey, where the judge was essentially compensated for each conviction he obtained; the interest may stem, as in Ward, from the judge's knowledge that his success and tenure in office depend on certain outcomes. "[T]he test," we have said, "is whether the . . . situation is one `which would offer a possible temptation to the average man as a judge [that] might lead him not to hold the balance nice, clear and true.' " Ward, 409 U. S., at 60 (quoting Tumey, 273 U. S., at 532). And third, due process does not require a showing that the judge is actually biased as a result of his self-interest. Rather, our cases have "always endeavored to prevent even the probability of unfairness." In re Murchison, 349 U. S., at 136. "[T]he requirement of due process of law in judicial procedure is not satisfied by the argument that men of the highest honor and the greatest self-sacrifice could carry it on without danger of injustice." Tumey, 273 U. S., at 532.[3] 816 The justification for the pledges or promises prohibition follows from these principles. When a judicial candidate promises to rule a certain way on an issue that may later reach the courts, the potential for due process violations is grave and manifest. If successful in her bid for office, the judicial candidate will become a judge, and in that capacity she will be under pressure to resist the pleas of litigants who advance positions contrary to her pledges on the campaign trail. If the judge fails to honor her campaign promises, she will not only face abandonment by supporters of her professed views; she will also "ris[k] being assailed as a dissembler," 247 F.3d, at 878, willing to say one thing to win an election and to do the opposite once in office. A judge in this position therefore may be thought to have a "direct, personal, substantial, [and] pecuniary interest" in ruling against certain litigants, Tumey, 273 U. S., at 523, for she may be voted off the bench and thereby lose her salary and emoluments unless she honors the pledge that secured her election. See Shepard, Campaign Speech: Restraint and Liberty in Judicial Ethics, 9 Geo. J. Legal Ethics 1059, 1083 1092 (1996); see id., at 1088 ("[A] campaign promise [may be characterized as] a bribe offered to voters, paid with rulings consistent with that promise, in return for continued employment 817 as a judge."); see also The Federalist No. 79, p. 472 (C. Rossiter ed. 1961) ("In the general course of human nature, a power over a man's subsistence amounts to a power over his will." (emphasis deleted)). Given this grave danger to litigants from judicial campaign promises, States are justified in barring expression of such commitments, for they typify the "situatio[n] . . . in which experience teaches that the probability of actual bias on the part of the judge . . . is too high to be constitutionally tolerable." Withrow v. Larkin, 421 U.S. 35, 47 (1975). By removing this source of "possible temptation" for a judge to rule on the basis of self-interest, Tumey, 273 U. S., at 532, the pledges or promises prohibition furthers the State's "compellin[g] interest in maintaining a judiciary fully capable of performing" its appointed task, Gregory v. Ashcroft, 501 U.S. 452, 472 (1991): "judging [each] particular controversy fairly on the basis of its own circumstances," United States v. Morgan, 313 U.S. 409, 421 (1941). See O'Neil, 35 Ind. L. Rev., at 723 ("What is at stake here is no less than the promise of fairness, impartiality, and ultimately of due process for those whose lives and fortunes depend upon judges being selected by means that are not fully subject to the vagaries of American politics."). In addition to protecting litigants' due process rights, the parties in this case further agree, the pledges or promises clause advances another compelling state interest: preserving the public's confidence in the integrity and impartiality of its judiciary. See Tr. of Oral Arg. 16 (petitioners' statement that pledges or promises properly fosters "public perception of the impartiality of the judiciary"). See Cox v. Louisiana, 379 U.S. 559, 565 (1965) ("A State may . . . properly protect the judicial process from being misjudged in the minds of the public."); In re Murchison, 349 U. S., at 136 ("[T]o perform its high function in the best way[,] `justice must satisfy the appearance of justice.' " (quoting Offutt v. United States, 348 U.S. 11, 14 (1954))). Because courts control 818 neither the purse nor the sword, their authority ultimately rests on public faith in those who don the robe. See Mistretta v. United States, 488 U.S. 361, 407 (1989) ("The legitimacy of the Judicial Branch ultimately depends on its reputation for impartiality and nonpartisanship."). As the Minnesota Supreme Court has recognized, all legal systemsregardless of their method of judicial selection"can function only so long as the public, having confidence in the integrity of its judges, accepts and abides by judicial decisions." Complaint Concerning Winton, 350 N.W.2d 337, 340 (1984). Prohibiting a judicial candidate from pledging or promising certain results if elected directly promotes the State's interest in preserving public faith in the bench. When a candidate makes such a promise during a campaign, the public will no doubt perceive that she is doing so in the hope of garnering votes. And the public will in turn likely conclude that when the candidate decides an issue in accord with that promise, she does so at least in part to discharge her undertaking to the voters in the previous election and to prevent voter abandonment in the next. The perception of that unseemly quid pro quo a judicial candidate's promises on issues in return for the electorate's votes at the pollsinevitably diminishes the public's faith in the ability of judges to administer the law without regard to personal or political self-interest.[4] Then-Justice Rehnquist's observations 819 about the federal system apply with equal if not greater force in the context of Minnesota's elective judiciary: Regarding the appearance of judicial integrity, "[one must] distinguish quite sharply between a public statement made prior to nomination for the bench, on the one hand, and a public statement made by a nominee to the bench. For the latter to express any but the most general observation about the law would suggest that, in order to obtain favorable consideration of his nomination, he deliberately was announcing in advance, without benefit of judicial oath, briefs, or argument, how he would decide a particular question that might come before him as a judge." Laird v. Tatum, 409 U.S. 824, 836, n. 5 (1972) (memorandum opinion). B The constitutionality of the pledges or promises clause is thus amply supported; the provision not only advances due process of law for litigants in Minnesota courts, it also reinforces the authority of the Minnesota judiciary by promoting public confidence in the State's judges. The Announce Clause, however, is equally vital to achieving these compelling ends, for without it, the pledges or promises provision would be feeble, an arid form, a matter of no real importance. Uncoupled from the Announce Clause, the ban on pledges or promises is easily circumvented. By prefacing a campaign commitment with the caveat, "although I cannot promise anything," or by simply avoiding the language of promises or pledges altogether, a candidate could declare with impunity how she would decide specific issues. Semantic sanitizing of the candidate's commitment would not, however, diminish its pernicious effects on actual and perceived judicial impartiality. To use the Court's example, a candidate 820 who campaigns by saying, "If elected, I will vote to uphold the legislature's power to prohibit same-sex marriages," ante, at 780, will feel scarcely more pressure to honor that statement than the candidate who stands behind a podium and tells a throng of cheering supporters: "I think it is constitutional for the legislature to prohibit same-sex marriages," ante, at 779. Made during a campaign, both statements contemplate a quid pro quo between candidate and voter. Both effectively "bind [the candidate] to maintain that position after election." Ante, at 770. And both convey the impression of a candidate prejudging an issue to win votes. Contrary to the Court's assertion, the "nonpromissory" statement averts none of the dangers posed by the "promissory" one. See ante, at 780-781 (emphasis deleted). By targeting statements that do not technically constitute pledges or promises but nevertheless "publicly mak[e] known how [the candidate] would decide" legal issues, 247 F.3d, at 881-882, the Announce Clause prevents this end run around the letter and spirit of its companion provision.[5] No less than the pledges or promises clause itself, the Announce 821 Clause is an indispensable part of Minnesota's effort to maintain the health of its judiciary, and is therefore constitutional for the same reasons. * * * This Court has recognized in the past, as Justice O'Connor does today, see ante, at 788-790 (concurring opinion), a "fundamental tension between the ideal character of the judicial office and the real world of electoral politics," Chisom, 501 U. S., at 400. We have no warrant to resolve that tension, however, by forcing States to choose one pole or the other. Judges are not politicians, and the First Amendment does not require that they be treated as politicians simply because they are chosen by popular vote. Nor does the First Amendment command States that wish to promote the integrity of their judges in fact and appearance to abandon systems of judicial selection that the people, in the exercise of their sovereign prerogatives, have devised. For more than three-quarters of a century, States like Minnesota have endeavored, through experiment tested by experience, to balance the constitutional interests in judicial integrity and free expression within the unique setting of an elected judiciary. P. McFadden, Electing Justice: The Law and Ethics of Judicial Election Campaigns 86 (1990); Brief for the Conference of Chief Justices as Amicus Curiae 5. The Announce Clause, borne of this long effort, "comes to this Court bearing a weighty title of respect," Teamsters v. Hanke, 339 U.S. 470, 475 (1950). I would uphold it as an essential component in Minnesota's accommodation of the complex and competing concerns in this sensitive area. Accordingly, I would affirm the judgment of the Court of Appeals for the Eighth Circuit.	Whether state or federal, elected or appointed, judges perform a function fundamentally different from that of the people's elected representatives. Legislative and executive officials act on behalf of the voters who placed them in office; "judge[s] represen[t] the Law." Unlike their counterparts in the political branches, judges are expected to 804 refrain from catering to particular constituencies or committing themselves on controversial in advance of adversarial presentation. Their mission is to decide "individual cases and controversies" on individual records, neutrally applying legal principles, and, when necessary, "stand[ing] up to what is generally supreme in a democracy: the popular will," Scalia, The Rule of Law as a Law of Rules, A judiciary capable of performing this function, owing fidelity to no person or party, is a "longstanding AngloAmerican tradition," United an essential bulwark of constitutional government, a constant guardian of the rule of law. The guarantee of an independent, impartial judiciary enables society to "withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts." West Virginia Bd. of "Without this, all the reservations of particular rights or privileges would amount to nothing." The Federalist No. 78, p. 466 (C. Rossiter ed. 1961). The ability of the judiciary to discharge its unique role rests to a large degree on the manner in which judges are selected. The Framers of the Federal Constitution sought to advance the judicial function through the structural protections of Article III, which provide for the selection of judges by the President on the advice and consent of the Senate, generally for lifetime terms. Through its own Constitution, Minnesota, in common with most other States, has decided to allow its citizens to choose judges directly in periodic elections. But Minnesota has not thereby opted to install a corps of political actors on the bench; rather, it has endeavored to preserve the integrity of its judiciary by other means. Recognizing that the influence of political parties is incompatible with the judge's role, for example, Minnesota 805 has designated all judicial elections nonpartisan. See And it has adopted a provision, here called the Announce Clause, designed to prevent candidates for judicial office from "publicly making known how they would decide likely to come before them as judges." Republican Party of The question this case presents is whether the First Amendment stops Minnesota from furthering its interest in judicial integrity through this precisely targeted speech restriction. I The speech restriction must fail, in the Court's view, because an electoral process is at stake; if Minnesota opts to elect its judges, the Court asserts, the State may not rein in what candidates may say. See ante, at 781 (notion that "right to speak out on " may be abridged in an election context "sets our First Amendment jurisprudence on its head"); ante, at 787-788 (power to dispense with elections does not include power to curtail candidate speech if State leaves election process in place); ("[W]hen a state opts to hold an election, it must commit itself to a complete election, replete with free speech and association."); I do not agree with this unilocular, "an election is an election," approach. Instead, I would differentiate elections for political offices, in which the First Amendment holds full sway, from elections designed to select those whose office it is to administer justice without respect to persons. Minnesota's choice to elect its judges, I am persuaded, does not preclude the State from installing an election process geared to the judicial office. Legislative and executive officials serve in representative capacities. They are agents of the people; their primary function is to advance the interests of their constituencies. Candidates for political offices, in keeping with their representative 806 role, must be left free to inform the electorate of their positions on specific Armed with such information, the individual voter will be equipped to cast her ballot intelligently, to vote for the candidate committed to positions the voter approves. Campaign statements committing the candidate to take sides on contentious are therefore not only appropriate in political elections; they are "at the core of our electoral process," for they "enhance the accountability of government officials to the people whom they represent," Judges, however, are not political actors. They do not sit as representatives of particular persons, communities, or parties; they serve no faction or constituency. "[I]t is the business of judges to be indifferent to popularity." n. 29 They must strive to do what is legally right, all the more so when the result is not the one "the home crowd" wants. Rehnquist, Dedicatory Address: Act Well Your Part: Therein All Honor Lies, 7 Pepperdine L. Rev. 227, 229-300 Even when they develop common law or give concrete meaning to constitutional text, judges act only in the context of individual cases, the outcome of which cannot depend on the will of the public. See 319 U. S., at Thus, the rationale underlying unconstrained speech in elections for political officethat representative government depends on the public's ability to choose agents who will act at its behestdoes not carry over to campaigns for the bench. As to persons aiming to occupy the seat of judgment, the Court's unrelenting reliance on decisions involving contests for legislative and executive posts is manifestly out of place. E. g., ante, at 781-782 ). See O', The Canons in the Courts: Recent First Amendment Rulings, (reliance on cases involving nonjudicial campaigns, particularly is "grievously misplaced"; "[h]ow any thoughtful judge could derive from that ruling any possible guidance for cases that involve judicial campaign speech seems baffling"). In view of the magisterial role judges must fill in a system of justice, a role that removes them from the partisan fray, States may limit judicial campaign speech by measures impermissible in elections for political office. See ("Mode of appointment is only one factor that enables distinctions to be made among different kinds of public official. Judges remain different from legislators and executive officials, even when all are elected, in ways that bear on the strength of the state's interest in restricting their freedom of speech."). The Court sees in this conclusion, and in the Announce Clause that embraces it, "an obvious tension," ante, at 787: The Minnesota electorate is permitted to select its judges by popular vote, but is not provided information on "subjects of interest to the voters," in particular, the voters are not told how the candidate would decide controversial cases or if elected. This supposed tension, however, rests on the false premise that by departing from the federal model with respect to who chooses judges, Minnesota necessarily departed from the federal position on the criteria relevant to the exercise of that choice.[1] 808 The Minnesota Supreme Court thought otherwise: "The methods by which the federal system and other states initially select and then elect or retain judges are varied, yet the explicit or implicit goal of the constitutional provisions and enabling legislation is the same: to create and maintain an independent judiciary as free from political, economic and social pressure as possible so judges can decide cases without those influences." Peterson, 490 N. W. 2d, at 420. Nothing in the Court's opinion convincingly explains why Minnesota may not pursue that goal in the manner it did. Minnesota did not choose a judicial selection system with all the trappings of legislative and executive races. While providing for public participation, it tailored judicial selection to fit the character of third branch office holding. See at The balance the State sought to achieveallowing the people to elect judges, but safeguarding the process so that the integrity of the judiciary would not be compromisedshould encounter 809 no First Amendment shoal. See generally O', II Proper resolution of this case requires correction of the Court's distorted construction of the provision before us for review. According to the Court, the Announce Clause "prohibits a judicial candidate from stating his views on any specific nonfanciful legal question within the province of the court for which he is running, except in the context of discussing past decisionsand in the latter context as well, if he expresses the view that he is not bound by stare decisis. " Ante, at 773. In two key respects, that construction misrepresents the meaning of the Announce Clause as interpreted by the Eighth Circuit and embraced by the Minnesota Supreme Court, In re Code of Judicial Conduct, 639 N.W.2d which has the final word on this matter, see Hortonville Joint School Dist. No. First and most important, the Court ignores a crucial limiting construction placed on the Announce Clause by the courts below. The provision does not bar a candidate from generally "stating [her] views" on legal questions, ante, at 773; it prevents her from "publicly making known how [she] would decide " 2 F.3d, at That limitation places beyond the scope of the Announce Clause a wide range of comments that may be highly informative to voters. Consistent with the Eighth Circuit's construction, such comments may include, for example, statements of historical fact ("As a prosecutor, I obtained 15 drunk driving convictions"); qualified statements ("Judges should use sparingly their discretion to grant lenient sentences to drunk drivers"); and statements framed 810 at a sufficient level of generality ("Drunk drivers are a threat to the safety of every driver"). What remains within the Announce Clause is the category of statements that essentially commit the candidate to a position on a specific issue, such as "I think all drunk drivers should receive the maximum sentence permitted by law." See Tr. of Oral Arg. 45 (candidate may not say "`I'm going to decide this particular issue this way in the future' "). Second, the Court misportrays the scope of the Clause as applied to a candidate's discussion of past decisions. Citing an apparent concession by respondents at argument, the Court concludes that "statements critical of past judicial decisions are not permissible if the candidate also states that he is against stare decisis, " ante, at 772 (emphasis deleted). That conclusion, however, draws no force from the meaning attributed to the Announce Clause by the Eighth Circuit. In line with the Minnesota Board on Judicial Standards, the Court of Appeals stated without qualification that the Clause "does not prohibit candidates from discussing appellate court decisions." (citing Minn. Bd. on Judicial Standards, Informal Opinion, Oct. 10, 1990, App. ("In all election contests, a candidate for judicial office may discuss decisions and opinions of the Appellate courts.")). The Eighth Circuit's controlling construction should not be modified by respondents' on the spot answers to fast-paced hypothetical questions at oral argument. Moose Lodge No. The Announce Clause is thus more tightly bounded, and campaigns conducted under that provision more robust, than the Court acknowledges. Judicial candidates in Minnesota may not only convey general information about themselves, see ante, at 774, they may also describe their conception of the role of a judge and their views on a wide range of subjects 811 of interest to the voters. See App. 97-103; Brief for Minnesota State Bar Association as Amicus Curiae 22-23 (e. g., the criteria for deciding whether to depart from sentencing guidelines, the remedies for racial and gender bias, and the balance between "free speech rights [and] the need to control [hate crimes]" ). Further, they may discuss, criticize, or defend past decisions of interest to voters. What candidates may not dosimply or with sophisticationis remove themselves from the constraints characteristic of the judicial office and declare how they would decide an issue, without regard to the particular context in which it is presented, sans briefs, oral argument, and, as to an appellate bench, the benefit of one's colleagues' analyses. Properly construed, the Announce Clause prohibits only a discrete subcategory of the statements the Court's misinterpretation encompasses. The Court's characterization of the Announce Clause as "election-nullifying," ante, at 782, "plac[ing] most subjects of interest to the voters off limits," ante, at 787, is further belied by the facts of this case. In his 1996 bid for office, petitioner Gregory Wersal distributed literature sharply criticizing three Minnesota Supreme Court decisions. Of the court's holding in the first casethat certain unrecorded confessions must be suppressedWersal asked, "Should we conclude that because the Supreme Court does not trust police, it allows confessed criminals to go free?" App. 37. Of the second case, invalidating a state welfare law, Wersal stated: "The Court should have deferred to the Legislature. It's the Legislature which should set our spending policies." And of the third case, a decision involving abortion rights, Wersal charged that the court's holding was "directly contrary to the opinion of the U. S. Supreme Court," "unprecedented," and a "pro-abortion stance." When a complaint was filed against Wersal on the basis of those statements, the Lawyers Professional Responsibility Board concluded that no discipline was warranted, 812 in part because it thought the campaign materials did not violate the Announce Clause, And when, at the outset of his 1998 campaign, Wersal sought to avoid the possibility of sanction for future statements, he pursued the option, available to all Minnesota judicial candidates, Tr. of Oral Arg. 12-13, of requesting an advisory opinion concerning the application of the Announce Clause. App. 24-26. In response to that request, the Board indicated that it did not anticipate any adverse action against him.[2] Wersal has thus never been sanctioned under the Announce Clause for any campaign statement he made. On the facts before us, in sum, the Announce Clause has hardly stifled the robust communication of ideas and views from judicial candidate to voter. III Even as it exaggerates the reach of the Announce Clause, the Court ignores the significance of that provision to the integrated system of judicial campaign regulation Minnesota has developed. Coupled with the Announce Clause in Minnesota's Code of Judicial Conduct is a provision that prohibits candidates from "mak[ing] pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office." Minn. Code of Judicial Conduct, Canon 5(A)(3)(d)(i) Although the Court is correct that this "pledges or promises" provision is not directly at issue in this case, see ante, at 770, the Court errs in overlooking the interdependence of that prohibition and the one before us. In my view, the constitutionality of the Announce 813 Clause cannot be resolved without an examination of that interaction in light of the interests the pledges or promises provision serves. A All parties to this case agree that, whatever the validity of the Announce Clause, the State may constitutionally prohibit judicial candidates from pledging or promising certain results. See Brief for Petitioners Republican Party of Minnesota et al. 36-37; Tr. of Oral Arg. -16 (petitioners' acknowledgment that candidates may be barred from making a "pledge or promise of an outcome"); Brief for Respondents 11; see also Brief for Brennan Center for Justice et al. as Amici Curiae 23 ("All of the parties and amici in this case agree that judges should not make explicit promises or commitments to decide particular cases in a particular manner."). The reasons for this agreement are apparent. Pledges or promises of conduct in office, however commonplace in races for the political branches, are inconsistent "with the judge's obligation to decide cases in accordance with his or her role." Tr. of Oral Arg. 16; see Brief for Petitioners Republican Party of Minnesota et al. 36 ("[B]ecause [judges] have a duty to decide a case on the basis of the law and facts before them, they can be prohibited, as candidates, from making such promises."). This judicial obligation to avoid prejudgment corresponds to the litigant's right, protected by the Due Process Clause of the Fourteenth Amendment, to "an impartial and disinterested tribunal in both civil and criminal cases," The proscription against pledges or promises thus represents an accommodation of "constitutionally protected interests [that] lie on both sides of the legal equation." Balanced against the candidate's interest in free expression is the litigant's "powerful and independent constitutional interest in fair adjudicative procedure." ; see Buckley, 997 F. 2d, 8 at 227 ("Two principles are in conflict and must, to the extent possible, be reconciled. The roots of both principles lie deep in our constitutional heritage."). The impartiality guaranteed to litigants through the Due Process Clause adheres to a core principle: "[N]o man is permitted to try cases where he has an interest in the outcome." In re (19). Our cases have "jealously guarded" that basic concept, for it "ensur[es] that no person will be deprived of his interests in the absence of a proceeding in which he may present his case with assurance that the arbiter is not predisposed to find against him." 446 U. S., at Applying this principle in we held that due process was violated where a judge received a portion of the fines collected from defendants whom he found guilty. Such an arrangement, we said, gave the judge a "direct, personal, substantial[, and] pecuniary interest" in reaching a particular outcome and thereby denied the defendant his right to an impartial arbiter. extended `s reasoning, holding that due process was similarly violated where fines collected from guilty defendants constituted a large part of a village's finances, for which the judge, who also served as the village mayor, was responsible. Even though the mayor did not personally share in those fines, we concluded, he "perforce occupie[d] two practically and seriously inconsistent positions, one partisan and the other judicial." We applied the principle of and most recently in Aetna Life Ins. That decision invalidated a ruling of the Alabama Supreme Court written by a justice who had a personal interest in the resolution of a dispositive issue. The Alabama Supreme Court's ruling was issued while the justice was pursuing a separate lawsuit in an Alabama lower court, and its outcome "had the clear and immediate effect of enhancing both the legal status 815 and the settlement value" of that separate suit. As in and we held, the justice therefore had an interest in the outcome of the decision that unsuited him to participate in the 5 U.S., It mattered not whether the justice was actually influenced by this interest; "[t]he Due Process Clause," we observed, "may sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties." These cases establish three propositions important to this dispute. First, a litigant is deprived of due process where the judge who hears his case has a "direct, personal, substantial, and pecuniary" interest in ruling against him. Second, this interest need not be as direct as it was in where the judge was essentially compensated for each conviction he obtained; the interest may stem, as in from the judge's knowledge that his success and tenure in office depend on certain outcomes. "[T]he test," we have said, "is whether the situation is one `which would offer a possible temptation to the average man as a judge [that] might lead him not to hold the balance nice, clear and true.' " (quoting 273 U. S., at 5). And third, due process does not require a showing that the judge is actually biased as a result of his self-interest. Rather, our cases have "always endeavored to prevent even the probability of unfairness." In re 349 U. S., at "[T]he requirement of due process of law in judicial procedure is not satisfied by the argument that men of the highest honor and the greatest self-sacrifice could carry it on without danger of injustice." 273 U. S., at 5.[3] 816 The justification for the pledges or promises prohibition follows from these principles. When a judicial candidate promises to rule a certain way on an issue that may later reach the courts, the potential for due process violations is grave and manifest. If successful in her bid for office, the judicial candidate will become a judge, and in that capacity she will be under pressure to resist the pleas of litigants who advance positions contrary to her pledges on the campaign trail. If the judge fails to honor her campaign promises, she will not only face abandonment by supporters of her professed views; she will also "ris[k] being assailed as a dissembler," willing to say one thing to win an election and to do the opposite once in office. A judge in this position therefore may be thought to have a "direct, personal, substantial, [and] pecuniary interest" in ruling against certain litigants, 273 U. S., for she may be voted off the bench and thereby lose her salary and emoluments unless she honors the pledge that secured her election. See Shepard, Campaign Speech: Restraint and Liberty in Judicial Ethics, 1083 1092 (1996); see ; see also The Federalist No. 79, p. 2 (C. Rossiter ed. 1961) ("In the general course of human nature, a power over a man's subsistence amounts to a power over his will." (emphasis deleted)). Given this grave danger to litigants from judicial campaign promises, States are justified in barring expression of such commitments, for they typify the "situatio[n] in which experience teaches that the probability of actual bias on the part of the judge is too high to be constitutionally tolerable." By removing this source of "possible temptation" for a judge to rule on the basis of self-interest, 273 U. S., at 5, the pledges or promises prohibition furthers the State's "compellin[g] interest in maintaining a judiciary fully capable of performing" its appointed task, 2 : "judging [each] particular controversy fairly on the basis of its own circumstances," United See O', In addition to protecting litigants' due process rights, the parties in this case further agree, the pledges or promises clause advances another compelling state interest: preserving the public's confidence in the integrity and impartiality of its judiciary. See Tr. of Oral Arg. 16 (petitioners' statement that pledges or promises properly fosters "public perception of the impartiality of the judiciary"). See 379 U.S. 9, ; In re 349 U. S., at )). Because courts control 818 neither the purse nor the sword, their authority ultimately rests on public faith in those who don the robe. See U.S. 361, As the Minnesota Supreme Court has recognized, all legal systemsregardless of their method of judicial selection"can function only so long as the public, having confidence in the integrity of its judges, accepts and abides by judicial decisions." Complaint Concerning Winton, Prohibiting a judicial candidate from pledging or promising certain results if elected directly promotes the State's interest in preserving public faith in the bench. When a candidate makes such a promise during a campaign, the public will no doubt perceive that she is doing so in the hope of garnering votes. And the public will in turn likely conclude that when the candidate decides an issue in accord with that promise, she does so at least in part to discharge her undertaking to the voters in the previous election and to prevent voter abandonment in the next. The perception of that unseemly quid pro quo a judicial candidate's promises on in return for the electorate's votes at the pollsinevitably diminishes the public's faith in the ability of judges to administer the law without regard to personal or political self-interest.[4] Then-Justice Rehnquist's observations 819 about the federal system apply with equal if not greater force in the context of Minnesota's elective judiciary: Regarding the appearance of judicial integrity, "[one must] distinguish quite sharply between a public statement made prior to nomination for the bench, on the one hand, and a public statement made by a nominee to the bench. For the latter to express any but the most general observation about the law would suggest that, in order to obtain favorable consideration of his nomination, he deliberately was announcing in advance, without benefit of judicial oath, briefs, or argument, how he would decide a particular question that might come before him as a judge." B The constitutionality of the pledges or promises clause is thus amply supported; the provision not only advances due process of law for litigants in Minnesota courts, it also reinforces the authority of the Minnesota judiciary by promoting public confidence in the State's judges. The Announce Clause, however, is equally vital to achieving these compelling ends, for without it, the pledges or promises provision would be feeble, an arid form, a matter of no real importance. Uncoupled from the Announce Clause, the ban on pledges or promises is easily circumvented. By prefacing a campaign commitment with the caveat, "although I cannot promise anything," or by simply avoiding the language of promises or pledges altogether, a candidate could declare with impunity how she would decide specific Semantic sanitizing of the candidate's commitment would not, however, diminish its pernicious effects on actual and perceived judicial impartiality. To use the Court's example, a candidate 820 who campaigns by saying, "If elected, I will vote to uphold the legislature's power to prohibit same-sex marriages," ante, at 780, will feel scarcely more pressure to honor that statement than the candidate who stands behind a podium and tells a throng of cheering supporters: "I think it is constitutional for the legislature to prohibit same-sex marriages," ante, at 779. Made during a campaign, both statements contemplate a quid pro quo between candidate and voter. Both effectively "bind [the candidate] to maintain that position after election." Ante, at 770. And both convey the impression of a candidate prejudging an issue to win votes. Contrary to the Court's assertion, the "nonpromissory" statement averts none of the dangers posed by the "promissory" one. See ante, at 780-781 (emphasis deleted). By targeting statements that do not technically constitute pledges or promises but nevertheless "publicly mak[e] known how [the candidate] would decide" legal 2 F.3d, at the Announce Clause prevents this end run around the letter and spirit of its companion provision.[5] No less than the pledges or promises clause itself, the Announce 821 Clause is an indispensable part of Minnesota's effort to maintain the health of its judiciary, and is therefore constitutional for the same reasons. * * * This Court has recognized in the past, as Justice O'Connor does today, see ante, at 788-790 (concurring opinion), a "fundamental tension between the ideal character of the judicial office and the real world of electoral politics," 501 U. S., at We have no warrant to resolve that tension, however, by forcing States to choose one pole or the other. Judges are not politicians, and the First Amendment does not require that they be treated as politicians simply because they are chosen by popular vote. Nor does the First Amendment command States that wish to promote the integrity of their judges in fact and appearance to abandon systems of judicial selection that the people, in the exercise of their sovereign prerogatives, have devised. For more than three-quarters of a century, States like Minnesota have endeavored, through experiment tested by experience, to balance the constitutional interests in judicial integrity and free expression within the unique setting of an elected judiciary. P. McFadden, Electing Justice: The Law and Ethics of Judicial Election Campaigns 86 (1990); Brief for the Conference of Chief Justices as Amicus Curiae 5. The Announce Clause, borne of this long effort, "comes to this Court bearing a weighty title of respect," 339 U.S. 0, 5 I would uphold it as an essential component in Minnesota's accommodation of the complex and competing concerns in this sensitive area. Accordingly, I would affirm the judgment of the Court of Appeals for the Eighth Circuit.	1,935
Justice Ginsburg	majority	false	Raymond B. Yates, MD, PC Profit Sharing Plan v. Hendon	2004-03-02	null	https://www.courtlistener.com/opinion/134722/raymond-b-yates-md-pc-profit-sharing-plan-v-hendon/	https://www.courtlistener.com/api/rest/v3/clusters/134722/	2,004	2003-038	2	9	0	This case presents a question on which federal courts have divided: Does the working owner of a business (here, the sole shareholder and president of a professional corporation) qualify as a "participant" in a pension plan covered by the Employee Retirement Income Security Act of 1974 (ERISA or Act), 88 Stat. 832, as amended, 29 U.S. C. § 1001 et seq. The answer, we hold, is yes: If the plan covers one or more employees other than the business owner and his or her spouse, the working owner may participate on equal terms with other plan participants. Such a working owner, in common with other employees, qualifies for the protections ERISA affords plan participants and is governed by the rights and remedies ERISA specifies. In so ruling, we reject the position, taken by the lower courts in this case, that a business owner may rank only as an "employer" and not also as an "employee" for purposes of ERISA-sheltered plan participation. I A Enacted "to protect . . . the interests of participants in employee benefit plans and their beneficiaries," 29 U.S. C. § 1001(b), ERISA comprises four titles. Title I, 29 U.S. C. § 1001 et seq., "requires administrators of all covered pension plans to file periodic reports with the Secretary of Labor, mandates minimum participation, vesting and funding schedules, establishes standards of fiduciary conduct for plan administrators, and provides for civil and criminal enforcement of the Act." Nachman Corp. v. Pension Benefit Guaranty Corporation, 446 U.S. 359, 361, n. 1 (1980). Title II, codified in various parts of Title 26 of the United States Code, "amended various [Internal Revenue Code] provisions . . . pertaining to qualification of pension plans for special tax treatment, in order, among other things, to conform to the standards set forth in Title I." 446 U.S., at 361, n. 1. Title 7 III, 29 U.S. C. § 1201 et seq., "contains provisions designed to coordinate enforcement efforts of different federal departments, and provides for further study of [benefit plans]." 446 U.S., at 361, n. 1. Title IV, 29 U.S. C. § 1301 et seq., "created the Pension Benefit Guaranty Corporation (PBGC) and a termination insurance program to protect employees against the loss of `nonforfeitable' benefits upon termination of pension plans that lack sufficient funds to pay such benefits in full." 446 U.S., at 361-362, n. 1. See also Mead Corp. v. Tilley, 490 U.S. 714, 717 (1989); Brief for United States as Amicus Curiae 2. This case concerns the definition and coverage provisions of Title I, though those provisions, indicating who may participate in an ERISA-sheltered plan, inform each of ERISA's four titles. Title I defines the term "employee benefit plan" to encompass "an employee welfare benefit plan or an employee pension benefit plan or a plan which is both . . . ." 29 U.S. C. § 1002(3). The same omnibus section defines "participant" as "any employee or former employee of an employer, . . . who is or may become eligible to receive a benefit of any type from an employee benefit plan which covers employees of such employer . . ., or whose beneficiaries may be eligible to receive any such benefit." § 1002(7). "Employee," under Title I's definition section, means "any individual employed by an employer," § 1002(6), and "employer" includes "any person acting directly as an employer, or indirectly in the interest of an employer, in relation to an employee benefit plan," § 1002(5). B Dr. Raymond B. Yates was the sole shareholder and president of Raymond B. Yates, M. D., P. C., a professional corporation. 287 F.3d 521, 524 (CA6 2002); App. to Pet. for Cert. 10a. The corporation maintained the Raymond B. Yates, M. D., P. C. Profit Sharing Plan (Profit Sharing Plan or Plan), for which Yates was the administrator and trustee. Ibid. 8 From the Profit Sharing Plan's inception, at least one person other than Yates or his wife was a participant. Ibid.; App. 269a. The Profit Sharing Plan qualified for favorable tax treatment under § 401 of the Internal Revenue Code (IRC). 287 F.3d, at 524; App. 71a-73a. As required by both the IRC, 26 U.S. C. § 401(a)(13), and Title I of ERISA, 29 U.S. C. § 1056(d), the Plan contained an antialienation provision. That provision, entitled "Spendthrift Clause," stated in relevant part: "Except for . . . loans to Participants as [expressly provided for in the Plan], no benefit or interest available hereunder will be subject to assignment or alienation, either voluntarily or involuntarily." App. 252a. In December 1989, Yates borrowed $20,000 at 11 percent interest from the Raymond B. Yates, M. D., P. C. Money Purchase Pension Plan (Money Purchase Pension Plan), which later merged into the Profit Sharing Plan. Id., at 268a-269a. The terms of the loan agreement required Yates to make monthly payments of $433.85 over the five-year period of the loan. Id., at 269a. Yates failed to make any monthly payment. 287 F.3d, at 524. In June 1992, coinciding with the Money Purchase Pension Plan-Profit Sharing Plan merger, Yates renewed the loan for five years. App. 269a. Again, he made no monthly payments. In fact, Yates repaid nothing until November 1996. 287 F.3d, at 524. That month, he used the proceeds from the sale of his house to make two payments totaling $50,467.46, which paid off in full the principal and interest due on the loan. Ibid. Yates maintained that, after the repayment, his interest in the Profit Sharing Plan amounted to about $87,000. App. to Pet. for Cert. 39a. Three weeks after Yates repaid the loan to the Profit Sharing Plan, on December 2, 1996, Yates's creditors filed an involuntary petition against him under Chapter 7 of the Bankruptcy Code. Id., at 12a; accord App. 300a. In August 1998, respondent William T. Hendon, the Bankruptcy Trustee, filed a complaint, pursuant to 11 U.S. C. §§ 547(b) 9 and 550, against petitioners Profit Sharing Plan and Yates, in his capacity as the Plan's trustee. App. 1a-3a. Hendon asked the Bankruptcy Court to "avoi[d] the . . . preferential transfer by [Yates] to [the Profit Sharing Plan] in the amount of $50,467.46 and [to] orde[r] [the Plan and Yates, as trustee,] to pay over to the [bankruptcy] trustee the sum of $50,467.46, plus legal interest . . ., together with costs . . . ." Id., at 3a. On cross-motions for summary judgment, the Bankruptcy Court ruled for Trustee Hendon. App. to Pet. for Cert. 36a-50a. The Bankruptcy Court first determined that the loan repayment qualified as a preferential transfer under 11 U.S. C. § 547(b).[1] App. to Pet. for Cert. 41a-42a. That finding was not challenged on appeal. The Bankruptcy Court then held that the Profit Sharing Plan and Yates, as trustee, could not rely on the Plan's antialienation provision to prevent Hendon from recovering the loan repayment. As "a self-employed 10 owner of the professional corporation that sponsor[ed] the pension plan," the Bankruptcy Court stated, Yates could not "participate as an employee under ERISA and . . . [therefore could not] use its provisions to enforce the restriction on the transfer of his beneficial interest in the Defendant Plan." Id., at 43a-44a. In so ruling, the Bankruptcy Court relied on Circuit precedent, including SEC v. Johnston, 143 F.3d 260 (CA6 1998), and Fugarino v. Hartford Life & Accident Ins. Co., 969 F.2d 178 (CA6 1992). The District Court affirmed the Bankruptcy Court's judgment. App. to Pet. for Cert. 9a-35a. Acknowledging that other Courts of Appeals had reached a different conclusion, id., at 19a, the District Court observed that it was bound by Sixth Circuit precedent. According to the controlling Sixth Circuit decisions, neither a sole proprietor, Fugarino, 969 F. 2d, at 186, nor a sole owner of a corporation, Agrawal v. Paul Revere Life Ins. Co., 205 F.3d 297, 302 (2000), qualifies as a "participant" in an ERISA-sheltered employee benefit plan. App. to Pet. for Cert. 20a-21a. Applying Circuit precedent, the District Court concluded: "The fact Dr. Yates was not qualified to participate in an ERISA protected plan means none of the money he contributed to the Plan as an `employee' was ever a part of an ERISA plan. The $50,467.46 he returned to the Plan was not protected by ERISA, because none of the money he had in the Plan was protected by ERISA." Id., at 20a. The Sixth Circuit affirmed the District Court's judgment. 287 F.3d 521. The Court of Appeals adhered to its "published caselaw [holding] that `a sole proprietor or sole shareholder of a business must be considered an employer and not an employee . . . for purposes of ERISA.'" Id., at 525 (quoting Fugarino, 969 F. 2d, at 186). "[T]he spendthrift clause in the Yates profit sharing/pension plan," the appeals court accordingly ruled, "[was] not enforceable by Dr. Yates under 11 ERISA." 287 F.3d, at 526. The Sixth Circuit's determination that Yates was not a "participant" in the Profit Sharing Plan for ERISA purposes obviated the question whether, had Yates qualified as such a participant, his loan repayment would have been shielded from the Bankruptcy Trustee's reach. See App. to Pet. for Cert. 46a-47a. We granted certiorari, 539 U.S. 957 (2003), in view of the division of opinion among the Circuits on the question whether a working owner may qualify as a participant in an employee benefit plan covered by ERISA. Compare Agrawal, 205 F. 3d, at 302 (sole shareholder is not a participant in an ERISA-qualified plan); Fugarino, 969 F. 2d, at 186 (sole proprietor is not a participant); Kwatcher v. Massachusetts Serv. Employees Pension Fund, 879 F.2d 957, 963 (CA1 1989) (sole shareholder is not a participant); Giardono v. Jones, 867 F.2d 409, 411-412 (CA7 1989) (sole proprietor is not a participant); Peckham v. Board of Trustees of Int'l Brotherhood of Painters and Allied Trades Union, 653 F.2d 424, 427-428 (CA10 1981) (sole proprietor is not a participant), with Vega v. National Life Ins. Servs., Inc., 188 F.3d 287, 294 (CA5 1999) (co-owner is a participant); In re Baker, 114 F.3d 636, 639 (CA7 1997) (majority shareholder is a participant); Madonia v. Blue Cross & Blue Shield of Virginia, 11 F.3d 444, 450 (CA4 1993) (sole shareholder is a participant).[2] 12 II A ERISA's definitions of "employee," and, in turn, "participant," are uninformative. See Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323 (1992) ("ERISA's nominal definition of `employee' as `any individual employed by an employer' is completely circular and explains nothing." (citation omitted)). We therefore look to other provisions of the Act for instruction. See ibid. ERISA's text contains multiple indications that Congress intended working owners to qualify as plan participants. Because these indications combine to provide "specific guidance," ibid., there is no cause in this case to resort to common law.[3] Congress enacted ERISA against a backdrop of IRC provisions that permitted corporate shareholders, partners, and sole proprietors to participate in tax-qualified pension plans. Brief for United States as Amicus Curiae 19-20. Working shareholders have been eligible to participate in such plans since 1942. See Revenue Act of 1942, ch. 619, § 165(a)(4), 56 Stat. 862 (a pension plan shall be tax exempt if, inter alia, "the contributions or benefits provided under the plan do not discriminate in favor of employees who are officers, shareholders, persons whose principal duties consist in supervising the work of other employees, or highly compensated 13 employees"). Two decades later, still prior to ERISA's adoption, Congress permitted partners and sole proprietors to establish tax-favored pension plans, commonly known as "H. R. 10" or "Keogh" plans. Self-Employed Individuals Tax Retirement Act of 1962, 76 Stat. 809; Brief for United States as Amicus Curiae 19. Thus, by 1962, working owners of all kinds could contribute to tax-qualified retirement plans. ERISA's enactment in 1974 did not change that situation.[4] Rather, Congress' objective was to harmonize ERISA with longstanding tax provisions. Title I of ERISA and related IRC provisions expressly contemplate the participation of working owners in covered benefit plans. Id., at 14-16. Most notably, several Title I provisions partially exempt certain plans in which working owners likely participate from otherwise mandatory ERISA provisions. Exemptions of this order would be unnecessary if working owners could not qualify as participants in ERISA-protected plans in the first place. To illustrate, Title I frees the following plans from the Act's fiduciary responsibility requirements: "(1) a plan which is unfunded and is maintained by an employer primarily for the purpose of providing deferred compensation for a select group of management or highly compensated employees; or "(2) any agreement described in section 736 of [the IRC], which provides payments to a retired partner or deceased partner or a deceased partner's successor in interest." 29 U.S. C. § 1101(a). The IRC defines the term "highly compensated employee" to include "any employee who . . . was a 5-percent owner at any time during the year or the preceding year." 26 U.S. C. 14 § 414(q)(1)(A). A "5-percent owner," the IRC further specifies, is "any person who owns . . . more than 5 percent of the outstanding stock of the corporation or stock possessing more than 5 percent of the total combined voting power of all stock of the corporation" if the employer is a corporation, or "any person who owns more than 5 percent of the capital or profits interest in the employer" if the employer is not a corporation. § 416(i)(1)(B)(i). Under these definitions, some working owners would fit the description "highly compensated employees." Similarly, agreements that make payments to retired partners, or to deceased partners' successors in interest, surely involve plans in which working partners participate. Title I also contains more limited exemptions from ERISA's fiduciary responsibility requirements. These exemptions, too, cover plans that ordinarily include working owners as participants. To illustrate, assets of an employee benefit plan typically must be held in trust. See 29 U.S. C. § 1103(a). That requirement, however, does not apply, inter alia, "to a plan . . . some or all of the participants of which are employees described in section 401(c)(1) of [the IRC]." § 1103(b)(3)(A). IRC § 401(c)(1)(A) defines an "employee" to include "a self-employed individual"; and IRC §§ 401(c)(1)(B) and (2)(A)(i), in turn, define "a self-employed individual" to cover an individual with "earned income" from "a trade or business in which personal services of the taxpayer are a material income-producing factor." This definition no doubt encompasses working sole proprietors and partners. 26 U.S. C. §§ 1402(a) and (c). Title I also contains exemptions from ERISA's prohibited transaction provisions. Like the fiduciary responsibility exemptions, these exemptions indicate that working owners may participate in ERISA-qualified plans. For example, although Title I generally bars transactions between a plan and a party in interest, 29 U.S. C. § 1106, the Act permits, among other exceptions, loans to plan participants if certain 15 conditions are satisfied, § 1108(b)(1). One condition is that loans must not be "made available to highly compensated employees . . . in an amount greater than the amount made available to other employees." § 1108(b)(1)(B). As just observed, see supra, at 13-14, some working owners, including shareholder-employees, qualify as "highly compensated employees." Title I goes on to exclude "owner-employees," as defined in the IRC, from the participant loan exemption. § 1108(d)(1). Under the IRC's definition, owner-employees include partners "who ow[n] more than 10 percent of either the capital interest or the profits interest in [a] partnership" and sole proprietors, but not shareholder-employees. 26 U.S. C. § 401(c)(3). In sum, Title I's provisions involving loans to plan participants, by explicit inclusion or exclusion, assume that working owners shareholder-employees, partners, and sole proprietors may participate in ERISA-qualified benefit plans. Provisions of Title IV of ERISA are corroborative. Brief for United States as Amicus Curiae 17, and n. 8. Title IV does not apply to plans "established and maintained exclusively for substantial owners," 29 U.S. C. § 1321(b)(9) (emphasis added), a category that includes sole proprietors and shareholders and partners with a ten percent or greater ownership interest, § 1322(b)(5)(A). But Title IV does cover plans in which substantial owners participate along with other employees. See § 1322(b)(5)(B). In addition, Title IV does not cover plans established by "professional service employer[s]" with 25 or fewer active participants. § 1321(b)(13). Yates's medical practice was set up as a professional service employer. See § 1321(c)(2)(A) (a "professional service employer" is "any proprietorship, partnership, corporation . . . owned or controlled by professional individuals . . . the principal business of which is the performance of professional services"). But significantly larger plans plans covering more than 25 employees established 16 by a professional service employer would presumably qualify for protection. Particularly instructive, Title IV and the IRC, as amended by Title II, clarify a key point missed by several lower courts: Under ERISA, a working owner may have dual status, i. e., he can be an employee entitled to participate in a plan and, at the same time, the employer (or owner or member of the employer) who established the plan. Both Title IV and the IRC describe the "employer" of a sole proprietor or partner. See 29 U.S. C. § 1301(b)(1) ("An individual who owns the entire interest in an unincorporated trade or business is treated as his own employer, and a partnership is treated as the employer of each partner who is an employee within the meaning of section 401(c)(1) of [the IRC]."); 26 U.S. C. § 401(c)(4) ("An individual who owns the entire interest in an unincorporated trade or business shall be treated as his own employer. A partnership shall be treated as the employer of each partner who is an employee within the meaning of [§ 401(c)(1)]."). These descriptions expressly anticipate that a working owner can wear two hats, as an employer and employee. Cf. Clackamas Gastroenterology Associates, P. C. v. Wells, 538 U.S. 440, 453 (2003) (GINSBURG, J., dissenting) ("Clackamas readily acknowledges that the physician-shareholders are `employees' for ERISA purposes."). In sum, because the statute's text is adequately informative, we need not look outside ERISA itself to conclude with security that Congress intended working owners to qualify as plan participants.[5] Congress' aim is advanced by our reading of the text. The working employer's opportunity personally to participate 17 and gain ERISA coverage serves as an incentive to the creation of plans that will benefit employer and nonowner employees alike. See Brief for United States as Amicus Curiae 21-22. Treating working owners as participants not only furthers ERISA's purpose to promote and facilitate employee benefit plans. Recognizing the working owner as an ERISA-sheltered plan participant also avoids the anomaly that the same plan will be controlled by discrete regimes: federal-law governance for the nonowner employees; state-law governance for the working owner. See, e. g., Agrawal, 205 F. 3d, at 302 (because sole shareholder does not rank as a plan participant under ERISA, his state-law claims against insurer are not preempted). ERISA's goal, this Court has emphasized, is "uniform national treatment of pension benefits." Patterson v. Shumate, 504 U.S. 753, 765 (1992). Excepting working owners from the federal Act's coverage would generate administrative difficulties and is hardly consistent with a national uniformity goal. Cf. Madonia, 11 F. 3d, at 450 ("Disallowing shareholders . . . from being plan `participants' would result in disparate treatment of corporate employees' claims, thereby frustrating the statutory purpose of ensuring similar treatment for all claims relating to employee benefit plans."). We note finally that a 1999 Department of Labor advisory opinion accords with our comprehension of Title I's definition and coverage provisions. Pension and Welfare Benefits Admin., U. S. Dept. of Labor, Advisory Opinion 99-04A, 26 BNA Pension and Benefits Rep. 559 (hereinafter Advisory Opinion 99-04A). Confirming that working owners may qualify as participants in ERISA-protected plans, the Department's opinion concludes: "In our view, the statutory provisions of ERISA, taken as a whole, reveal a clear Congressional design to include `working owners' within the definition of `participant' for purposes of Title I of ERISA. Congress could not have intended that a pension plan operated so as to 18 satisfy the complex tax qualification rules applicable to benefits provided to `owner-employees' under the provisions of Title II of ERISA, and with respect to which an employer faithfully makes the premium payments required to protect the benefits payable under the plan to such individuals under Title IV of ERISA, would somehow transgress against the limitations of the definitions contained in Title I of ERISA. Such a result would cause an intolerable conflict between the separate titles of ERISA, leading to the sort of `absurd results' that the Supreme Court warned against in Nationwide Mutual Insurance Co. v. Darden, 503 U.S. 318 (1992)." Id., at 560-561 (footnote omitted). This agency view on the qualification of a self-employed individual for plan participation reflects a "body of experience and informed judgment to which courts and litigants may properly resort for guidance." Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944). B The Sixth Circuit's leading decision in point its 1992 determination in Fugarino relied, in large part, on an incorrect reading of a Department of Labor regulation, 29 CFR § 2510.3-3. The Fugarino court read the Department's regulation to rule out classification of a working owner as an employee of the business he owns. Entitled "Employee benefit plan," the regulation complements § 3(3) of ERISA, 29 U.S. C. § 1002(3), which defines "employee benefit plan," see supra, at 7; the regulation provides, in relevant part: "(b) Plans without employees. For purposes of title I of the Act and this chapter, the term `employee benefit plan' shall not include any plan, fund or program, other than an apprenticeship or other training program, under which no employees are participants covered under the plan, as defined in paragraph (d) of this section. For example, a so-called `Keogh' or `H. R. 10' plan under 19 which only partners or only a sole proprietor are participants covered under the plan will not be covered under title I. However, a Keogh plan under which one or more common law employees, in addition to the self-employed individuals, are participants covered under the plan, will be covered under title I. . . . "(c) Employees. For purposes of this section: "(1) An individual and his or her spouse shall not be deemed to be employees with respect to a trade or business, whether incorporated or unincorporated, which is wholly owned by the individual or by the individual and his or her spouse, and "(2) A partner in a partnership and his or her spouse shall not be deemed to be employees with respect to the partnership." 29 CFR § 2510.3-3 (2003) (emphasis added and deleted). In common with other Courts of Appeals that have held working owners do not qualify as participants in ERISA-governed employee benefit plans, the Sixth Circuit apparently understood the regulation to provide a generally applicable definition of the term "employee," controlling for all Title I purposes. Fugarino, 969 F. 2d, at 185-186 ("As a result of [the] regulatio[n], a plan whose sole beneficiaries are the company's owners cannot qualify as a plan under ERISA. Further, an employer cannot ordinarily be an employee or participant under ERISA." (citation omitted)). See also Kwatcher, 879 F. 2d, at 961 ("By its terms, the regulation unambiguously debars a sole shareholder . . . from `employee' status, notwithstanding that he may work for the corporation he owns, shoulder to shoulder with eligible (non-owner) employees."); Giardono, 867 F. 2d, at 412 ("[This] regulatio[n] exclude[s] from the definition of an employee any individual who wholly owns a trade or business, whether incorporated or unincorporated."). 20 Almost eight years after its decision in Fugarino, in Agrawal, the Sixth Circuit implied that it may have misread the regulation: "Th[e] limiting definition of employee [in § 2510.3-3(c)] addresses the threshold issue of whether an ERISA plan exists. It is not consistent with the purpose of ERISA to apply this limiting definition of employee to the statutory definitions of participant and beneficiary." 205 F.3d, at 303. The Circuit, however, did not overrule its earlier interpretation. See 287 F.3d, at 525 (case below) ("[T]he three judge panel before which this appeal is currently pending has no authority to overrule Fugarino."); Agrawal, 205 F. 3d, at 302 ("the decision in the present case is preordained by the Fugarino holding"). The Department of Labor's 1999 advisory opinion, see supra, at 17, interprets the "Employee benefit plan" regulation as follows: "In its regulation at 29 C. F. R. 2510.3-3, the Department clarified that the term `employee benefit plan' as defined in section 3(3) of Title I does not include a plan the only participants of which are `[a]n individual and his or her spouse . . . with respect to a trade of business, whether incorporated or unincorporated, which is wholly owned by the individual or by the individual and his or her spouse' or `[a] partner in a partnership and his or her spouse.' The regulation further specifies, however, that a plan that covers as participants `one or more common law employees, in addition to the self-employed individuals' will be included in the definition of `employee benefit plan' under section 3(3). The conclusion of this opinion, that such `self-employed individuals' are themselves `participants' in the covered plan, is fully consistent with that regulation." Advisory Opinion 99-04A, at 561, n. 7 (emphasis added). This agency view, overlooked by the Sixth Circuit, see Brief for United States as Amicus Curiae 26, merits the Judiciary's 21 respectful consideration. Cf. Clackamas Gastroenterology Associates, P. C., 538 U. S., at 449 (Equal Employment Opportunity Commission guidelines under the Americans with Disabilities Act of 1990 are persuasive). The Department's regulation itself reveals the definitional prescription's limited scope. The prescription describes "employees" only "[f]or purposes of this section," supra, at 19 (emphasis deleted), i. e., the section defining "employee benefit plans." Accordingly, the regulation addresses only what plans qualify as "employee benefit plans" under Title I of ERISA. Plans that cover only sole owners or partners and their spouses, the regulation instructs, fall outside Title I's domain.[6] Plans covering working owners and their nonowner employees, on the other hand, fall entirely within ERISA's compass.[7] See Vega, 188 F. 3d, at 294 ("We . . . interpret the regulatio[n] to define employee only for purposes of determining the existence of an ERISA plan."); Madonia, 22 11 F. 3d, at 449-450 ("[T]he regulation does not govern the issue of whether someone is a `participant' in an ERISA plan, once the existence of that plan has been established. This makes perfect sense: once a plan has been established, it would be anomalous to have those persons benefitting from it governed by two disparate sets of legal obligations."). Also in common with other Courts of Appeals that have denied participant status to working owners, the Sixth Circuit's leading decision mistakenly relied, in addition, on ERISA's "anti-inurement" provision, 29 U.S. C. § 1103(c)(1), which prohibits plan assets from inuring to the benefit of employers. See Fugarino, 969 F. 2d, at 186 ("A fundamental requirement of ERISA is that `the assets of a plan shall never inure to the benefit of any employer . . . .'"); Kwatcher, 879 F. 2d, at 960 ("Once a person has been found to fit within the `employer' integument, [§ 1103(c)(1)] prohibits payments to him from a qualified plan."); Giardono, 867 F. 2d, at 411 ("It is a fundamental requirement of ERISA that `. . . the assets of a plan shall never inure to the benefit of any employer . . . .'"). Correctly read, however, the anti-inurement provision does not preclude Title I coverage of working owners as plan participants. It states that, with enumerated exceptions, "the assets of a plan shall never inure to the benefit of any employer and shall be held for the exclusive purposes of providing benefits to participants in the plan and their beneficiaries and defraying reasonable expenses of administering the plan." 29 U.S. C. § 1103(c)(1). The provision demands only that plan assets be held for supplying benefits to plan participants. Like the Department of Labor regulation, see supra, at 18-19, the anti-inurement provision does not address the discrete question whether working owners, along with nonowner employees, may be participants in ERISA-sheltered plans. As the Fifth Circuit observed in Vega: 23 "Th[e] [anti-inurement] provision refers to the congressional determination that funds contributed by the employer (and, obviously, by the [nonowner] employees . . .) must never revert to the employer; it does not relate to plan benefits being paid with funds or assets of the plan to cover a legitimate pension or health benefit claim by an employee who happens to be a stockholder or even the sole shareholder of a corporation." 188 F.3d, at 293, n. 5. ERISA's anti-inurement provision is based on the analogous exclusive benefit provision in the IRC, 26 U.S. C. § 401(a)(2), which has never been understood to bar tax-qualified plan participation by working owners. See H. R. Conf. Rep. No. 93-1280, pp. 302-303 (1974); Brief for United States as Amicus Curiae 29. The purpose of the anti-inurement provision, in common with ERISA's other fiduciary responsibility provisions, is to apply the law of trusts to discourage abuses such as self-dealing, imprudent investment, and misappropriation of plan assets, by employers and others. See, e. g., Prudential Ins. Co. of Am. v. Doe, 76 F.3d 206, 209 (CA8 1996). Those concerns are not implicated by paying benefits to working owners who participate on an equal basis with nonowner employees in ERISA-protected plans. In sum, the anti-inurement provision, like the Department of Labor regulation, establishes no categorical barrier to working owner participation in ERISA plans. Whether Yates himself, in his handling of loan repayments, see supra, at 8, engaged in conduct inconsistent with the anti-inurement provision is an issue not yet reached by the courts below, one on which we express no opinion. * * For the reasons stated, the judgment of the Court of Appeals for the Sixth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion, *24 including consideration of questions earlier raised but not resolved. Specifically, given the undisputed facts concerning Yates's handling of the loan, i.e., his failure to honor the periodic repayment requirements: (1) Did the November 1996 close-to-bankruptcy repayments, despite the prior defaults, become "a portion of [Yates's] interest in a qualified retirement plan . . . excluded from his bankruptcy estate," App. to Pet. for Cert. 40a; and (2) if so, were the repayments "beyond the reach of [the Bankruptcy] [T]rustee's power to avoid and recover preferential transfers," id., at 47a? It is so ordered. JUSTICE SCALIA, concurring in the judgment.	This case presents a question on which federal courts have divided: Does the working owner of a business (here, the sole shareholder and president of a professional corporation) qualify as a "participant" in a pension plan covered by the Employee Retirement Income Security Act of 1974 (ERISA or Act), as amended, 29 US C 1001 et seq The answer, we hold, is yes: If the plan covers one or more employees other than the business owner and his or her spouse, the working owner may participate on equal terms with other plan participants Such a working owner, in common with other employees, qualifies for the protections ERISA affords plan participants and is governed by the rights and remedies ERISA specifies In so ruling, we reject the position, taken by the lower courts in this case, that a business owner may rank only as an "employer" and not also as an "employee" for purposes of ERISA-sheltered plan participation I A Enacted "to protect the interests of participants in employee benefit plans and their beneficiaries," 29 US C 1001(b), ERISA comprises four titles Title I, 29 US C 1001 et seq, "requires administrators of all covered pension plans to file periodic reports with the Secretary of Labor, mandates minimum participation, vesting and funding schedules, establishes standards of fiduciary conduct for plan administrators, and provides for civil and criminal enforcement of the Act" Nachman Title II, codified in various parts of Title 26 of the United States Code, "amended various [Internal Revenue Code] provisions pertaining to qualification of pension plans for special tax treatment, in order, among other things, to conform to the standards set forth in Title I" 446 US, at Title 7 III, 29 US C 1201 et seq, "contains provisions designed to coordinate enforcement efforts of different federal departments, and provides for further study of [benefit plans]" 446 US, at Title IV, 29 US C 1301 et seq, "created the Pension Benefit Guaranty Corporation (PBGC) and a termination insurance program to protect employees against the loss of `nonforfeitable' benefits upon termination of pension plans that lack sufficient funds to pay such benefits in full" -362, n 1 See also Mead ; Brief for United States as Amicus Curiae 2 This case concerns the definition and coverage provisions of Title I, though those provisions, indicating who may participate in an ERISA-sheltered plan, inform each of ERISA's four titles Title I defines the term "employee benefit plan" to encompass "an employee welfare benefit plan or an employee pension benefit plan or a plan which is both " 29 US C 1002(3) The same omnibus section defines "participant" as "any employee or former employee of an employer, who is or may become eligible to receive a benefit of any type from an employee benefit plan which covers employees of such employer or whose beneficiaries may be eligible to receive any such benefit" 1002(7) "Employee," under Title I's definition section, means "any individual employed by an employer," 1002(6), and "employer" includes "any person acting directly as an employer, or indirectly in the interest of an employer, in relation to an employee benefit plan," 1002(5) B Dr Raymond B Yates was the sole shareholder and president of Raymond B Yates, M D, P C, a professional corporation ; App to Pet for Cert 10a The corporation maintained the Raymond B Yates, M D, P C Profit Sharing Plan (Profit Sharing Plan or Plan), for which Yates was the administrator and trustee 8 From the Profit Sharing Plan's inception, at least one person other than Yates or his wife was a participant ; App 269a The Profit Sharing Plan qualified for favorable tax treatment under 401 of the Internal Revenue Code (IRC) 287 F3d, at ; App 71a-73a As required by both the IRC, 26 US C 401(a)(13), and Title I of ERISA, 29 US C 1056(d), the Plan contained an antialienation provision That provision, entitled "Spendthrift Clause," stated in relevant part: "Except for loans to Participants as [expressly provided for in the Plan], no benefit or interest available hereunder will be subject to assignment or alienation, either voluntarily or involuntarily" App 252a In December Yates borrowed $20,000 at 11 percent interest from the Raymond B Yates, M D, P C Money Purchase Pension Plan (Money Purchase Pension Plan), which later merged into the Profit Sharing Plan Id, at 268a-269a The terms of the loan agreement required Yates to make monthly payments of $43385 over the five-year period of the loan Id, at 269a Yates failed to make any monthly payment 287 F3d, at In June coinciding with the Money Purchase Pension Plan-Profit Sharing Plan merger, Yates renewed the loan for five years App 269a Again, he made no monthly payments In fact, Yates repaid nothing until November 287 F3d, at That month, he used the proceeds from the sale of his house to make two payments totaling $50,46746, which paid off in full the principal and interest due on the loan Yates maintained that, after the repayment, his interest in the Profit Sharing Plan amounted to about $87,000 App to Pet for Cert 39a Three weeks after Yates repaid the loan to the Profit Sharing Plan, on December 2, Yates's creditors filed an involuntary petition against him under Chapter 7 of the Bankruptcy Code Id, at 12a; accord App 300a In August respondent William T Hendon, the Bankruptcy Trustee, filed a complaint, pursuant to 11 US C 547(b) 9 and 550, against petitioners Profit Sharing Plan and Yates, in his capacity as the Plan's trustee App 1a-3a Hendon asked the Bankruptcy Court to "avoi[d] the preferential transfer by [Yates] to [the Profit Sharing Plan] in the amount of $50,46746 and [to] orde[r] [the Plan and Yates, as trustee,] to pay over to the [bankruptcy] trustee the sum of $50,46746, plus legal interest together with costs " Id, at 3a On cross-motions for summary judgment, the Bankruptcy Court ruled for Trustee Hendon App to Pet for Cert 36a-50a The Bankruptcy Court first determined that the loan repayment qualified as a preferential transfer under 11 US C 547(b)[1] App to Pet for Cert 41a-42a That finding was not challenged on appeal The Bankruptcy Court then held that the Profit Sharing Plan and Yates, as trustee, could not rely on the Plan's antialienation provision to prevent Hendon from recovering the loan repayment As "a self-employed 10 owner of the professional corporation that sponsor[ed] the pension plan," the Bankruptcy Court stated, Yates could not "participate as an employee under ERISA and [therefore could not] use its provisions to enforce the restriction on the transfer of his beneficial interest in the Defendant Plan" Id, at 43a-44a In so ruling, the Bankruptcy Court relied on Circuit precedent, including SEC v Johnston, 143 F3d 260 and Fugarino v Hartford Life & Accident Ins Co, 969 F2d 178 The District Court affirmed the Bankruptcy Court's judgment App to Pet for Cert 9a-35a Acknowledging that other Courts of Appeals had reached a different conclusion, id, a, the District Court observed that it was bound by Sixth Circuit precedent According to the controlling Sixth Circuit decisions, neither a sole proprietor, Fugarino, 969 F 2d, at 186, nor a sole owner of a corporation, v Paul Revere Life Ins Co, 205 F3d 297, qualifies as a "participant" in an ERISA-sheltered employee benefit plan App to Pet for Cert 20a-21a Applying Circuit precedent, the District Court concluded: "The fact Dr Yates was not qualified to participate in an ERISA protected plan means none of the money he contributed to the Plan as an `employee' was ever a part of an ERISA plan The $50,46746 he returned to the Plan was not protected by ERISA, because none of the money he had in the Plan was protected by ERISA" Id, at 20a The Sixth Circuit affirmed the District Court's judgment The Court of Appeals adhered to its "published caselaw [holding] that `a sole proprietor or sole shareholder of a business must be considered an employer and not an employee for purposes of ERISA'" Id, (quoting Fugarino, 969 F 2d, at 186) "[T]he spendthrift clause in the Yates profit sharing/pension plan," the appeals court accordingly ruled, "[was] not enforceable by Dr Yates under 11 ERISA" 287 F3d, at 526 The Sixth Circuit's determination that Yates was not a "participant" in the Profit Sharing Plan for ERISA purposes obviated the question whether, had Yates qualified as such a participant, his loan repayment would have been shielded from the Bankruptcy Trustee's reach See App to Pet for Cert 46a-47a We granted certiorari, 539 US 957 in view of the division of opinion among the Circuits on the question whether a working owner may qualify as a participant in an employee benefit plan covered by ERISA Compare 205 F 3d, at ; Fugarino, 969 F 2d, at 186 ; Kwatcher v Massachusetts Serv Employees Pension Fund, 879 F2d 957, ; Giardono v Jones, 867 F2d 409, ; Peckham v Board of Trustees of Int'l Brotherhood of Painters and Allied Trades Union, 653 F2d 424, with v National Life Ins Servs, Inc, 188 F3d 287, ; In re Baker, 114 F3d 636, ; v Blue Cross & Blue Shield of Virginia, 11 F3d 444, [2] 12 II A ERISA's definitions of "employee," and, in turn, "participant," are uninformative See Nationwide Mut Ins Co v Darden, 503 US 318, ("ERISA's nominal definition of `employee' as `any individual employed by an employer' is completely circular and explains nothing" (citation omitted)) We therefore look to other provisions of the Act for instruction See ibid ERISA's text contains multiple indications that Congress intended working owners to qualify as plan participants Because these indications combine to provide "specific guidance," ibid, there is no cause in this case to resort to common law[3] Congress enacted ERISA against a backdrop of IRC provisions that permitted corporate shareholders, partners, and sole proprietors to participate in tax-qualified pension plans Brief for United States as Amicus Curiae 19-20 Working shareholders have been eligible to participate in such plans since 1942 See Revenue Act of 1942, ch 619, 165(a)(4), 56 St62 (a pension plan shall be tax exempt if, inter alia, "the contributions or benefits provided under the plan do not discriminate in favor of employees who are officers, shareholders, persons whose principal duties consist in supervising the work of other employees, or highly compensated 13 employees") Two decades later, still prior to ERISA's adoption, Congress permitted partners and sole proprietors to establish tax-favored pension plans, commonly known as "H R 10" or "Keogh" plans Self-Employed Individuals Tax Retirement Act of 1962, 76 St09; Brief for United States as Amicus Curiae 19 Thus, by 1962, working owners of all kinds could contribute to tax-qualified retirement plans ERISA's enactment in 1974 did not change that situation[4] Rather, Congress' objective was to harmonize ERISA with longstanding tax provisions Title I of ERISA and related IRC provisions expressly contemplate the participation of working owners in covered benefit plans Id, Most notably, several Title I provisions partially exempt certain plans in which working owners likely participate from otherwise mandatory ERISA provisions Exemptions of this order would be unnecessary if working owners could not qualify as participants in ERISA-protected plans in the first place To illustrate, Title I frees the following plans from the Act's fiduciary responsibility requirements: "(1) a plan which is unfunded and is maintained by an employer primarily for the purpose of providing deferred compensation for a select group of management or highly compensated employees; or "(2) any agreement described in section 736 of [the IRC], which provides payments to a retired partner or deceased partner or a deceased partner's successor in interest" 29 US C 1101(a) The IRC defines the term "highly compensated employee" to include "any employee who was a 5-percent owner at any time during the year or the preceding year" 26 US C 14 414(q)(1)(A) A "5-percent owner," the IRC further specifies, is "any person who owns more than 5 percent of the outstanding stock of the corporation or stock possessing more than 5 percent of the total combined voting power of all stock of the corporation" if the employer is a corporation, or "any person who owns more than 5 percent of the capital or profits interest in the employer" if the employer is not a corporation 416(i)(1)(B)(i) Under these definitions, some working owners would fit the description "highly compensated employees" Similarly, agreements that make payments to retired partners, or to deceased partners' successors in interest, surely involve plans in which working partners participate Title I also contains more limited exemptions from ERISA's fiduciary responsibility requirements These exemptions, too, cover plans that ordinarily include working owners as participants To illustrate, assets of an employee benefit plan typically must be held in trust See 29 US C 1103(a) That requirement, however, does not apply, inter alia, "to a plan some or all of the participants of which are employees described in section 401(c)(1) of [the IRC]" 1103(b)(3)(A) IRC 401(c)(1)(A) defines an "employee" to include "a self-employed individual"; and IRC 401(c)(1)(B) and (2)(A)(i), in turn, define "a self-employed individual" to cover an individual with "earned income" from "a trade or business in which personal services of the taxpayer are a material income-producing factor" This definition no doubt encompasses working sole proprietors and partners 26 US C 2(a) and (c) Title I also contains exemptions from ERISA's prohibited transaction provisions Like the fiduciary responsibility exemptions, these exemptions indicate that working owners may participate in ERISA-qualified plans For example, although Title I generally bars transactions between a plan and a party in interest, 29 US C 1106, the Act permits, among other exceptions, loans to plan participants if certain 15 conditions are satisfied, 1108(b)(1) One condition is that loans must not be "made available to highly compensated employees in an amount greater than the amount made available to other employees" 1108(b)(1)(B) As just observed, see some working owners, including shareholder-employees, qualify as "highly compensated employees" Title I goes on to exclude "owner-employees," as defined in the IRC, from the participant loan exemption 1108(d)(1) Under the IRC's definition, owner-employees include partners "who ow[n] more than 10 percent of either the capital interest or the profits interest in [a] partnership" and sole proprietors, but not shareholder-employees 26 US C 401(c)(3) In sum, Title I's provisions involving loans to plan participants, by explicit inclusion or exclusion, assume that working owners shareholder-employees, partners, and sole proprietors may participate in ERISA-qualified benefit plans Provisions of Title IV of ERISA are corroborative Brief for United States as Amicus Curiae 17, and n 8 Title IV does not apply to plans "established and maintained exclusively for substantial owners," 29 US C 1321(b)(9) (emphasis added), a category that includes sole proprietors and shareholders and partners with a ten percent or greater ownership interest, 13(b)(5)(A) But Title IV does cover plans in which substantial owners participate along with other employees See 13(b)(5)(B) In addition, Title IV does not cover plans established by "professional service employer[s]" with 25 or fewer active participants 1321(b)(13) Yates's medical practice was set up as a professional service employer See 1321(c)(2)(A) (a "professional service employer" is "any proprietorship, partnership, corporation owned or controlled by professional individuals the principal business of which is the performance of professional services") But significantly larger plans plans covering more than 25 employees established 16 by a professional service employer would presumably qualify for protection Particularly instructive, Title IV and the IRC, as amended by Title II, clarify a key point missed by several lower courts: Under ERISA, a working owner may have dual status, i e, he can be an employee entitled to participate in a plan and, at the same time, the employer (or owner or member of the employer) who established the plan Both Title IV and the IRC describe the "employer" of a sole proprietor or partner See 29 US C 1301(b)(1) ("An individual who owns the entire interest in an unincorporated trade or business is treated as his own employer, and a partnership is treated as the employer of each partner who is an employee within the meaning of section 401(c)(1) of [the IRC]"); 26 US C 401(c)(4) ("An individual who owns the entire interest in an unincorporated trade or business shall be treated as his own employer A partnership shall be treated as the employer of each partner who is an employee within the meaning of [ 401(c)(1)]") These descriptions expressly anticipate that a working owner can wear two hats, as an employer and employee Cf Clackamas Gastroenterology Associates, P C v Wells, 538 US 440, (GINSBURG, J, dissenting) ("Clackamas readily acknowledges that the physician-shareholders are `employees' for ERISA purposes") In sum, because the statute's text is adequately informative, we need not look outside ERISA itself to conclude with security that Congress intended working owners to qualify as plan participants[5] Congress' aim is advanced by our reading of the text The working employer's opportunity personally to participate 17 and gain ERISA coverage serves as an incentive to the creation of plans that will benefit employer and nonowner employees alike See Brief for United States as Amicus Curiae 21- Treating working owners as participants not only furthers ERISA's purpose to promote and facilitate employee benefit plans Recognizing the working owner as an ERISA-sheltered plan participant also avoids the anomaly that the same plan will be controlled by discrete regimes: federal-law governance for the nonowner employees; state-law governance for the working owner See, e g, 205 F 3d, at ERISA's goal, this Court has emphasized, is "uniform national treatment of pension benefits" Patterson v Shumate, 504 US 753, Excepting working owners from the federal Act's coverage would generate administrative difficulties and is hardly consistent with a national uniformity goal Cf 11 F 3d, at ("Disallowing shareholders from being plan `participants' would result in disparate treatment of corporate employees' claims, thereby frustrating the statutory purpose of ensuring similar treatment for all claims relating to employee benefit plans") We note finally that a Department of Labor advisory opinion accords with our comprehension of Title I's definition and coverage provisions Pension and Welfare Benefits Admin, U S Dept of Labor, Advisory Opinion 99-04A, 26 BNA Pension and Benefits Rep 559 (hereinafter Advisory Opinion 99-04A) Confirming that working owners may qualify as participants in ERISA-protected plans, the Department's opinion concludes: "In our view, the statutory provisions of ERISA, taken as a whole, reveal a clear Congressional design to include `working owners' within the definition of `participant' for purposes of Title I of ERISA Congress could not have intended that a pension plan operated so as to 18 satisfy the complex tax qualification rules applicable to benefits provided to `owner-employees' under the provisions of Title II of ERISA, and with respect to which an employer faithfully makes the premium payments required to protect the benefits payable under the plan to such individuals under Title IV of ERISA, would somehow transgress against the limitations of the definitions contained in Title I of ERISA Such a result would cause an intolerable conflict between the separate titles of ERISA, leading to the sort of `absurd results' that the Supreme Court warned against in Nationwide Mutual Insurance Co v Darden, 503 US 318 " Id, This agency view on the qualification of a self-employed individual for plan participation reflects a "body of experience and informed judgment to which courts and litigants may properly resort for guidance" Skidmore v Swift & Co, US 134, B The Sixth Circuit's leading decision in point its determination in Fugarino relied, in large part, on an incorrect reading of a Department of Labor regulation, 29 CFR 25103-3 The Fugarino court read the Department's regulation to rule out classification of a working owner as an employee of the business he owns Entitled "Employee benefit plan," the regulation complements 3(3) of ERISA, 29 US C 1002(3), which defines "employee benefit plan," see ; the regulation provides, in relevant part: "(b) Plans without employees For purposes of title I of the Act and this chapter, the term `employee benefit plan' shall not include any plan, fund or program, other than an apprenticeship or other training program, under which no employees are participants covered under the plan, as defined in paragraph (d) of this section For example, a so-called `Keogh' or `H R 10' plan under 19 which only partners or only a sole proprietor are participants covered under the plan will not be covered under title I However, a Keogh plan under which one or more common law employees, in addition to the self-employed individuals, are participants covered under the plan, will be covered under title I "(c) Employees For purposes of this section: "(1) An individual and his or her spouse shall not be deemed to be employees with respect to a trade or business, whether incorporated or unincorporated, which is wholly owned by the individual or by the individual and his or her spouse, and "(2) A partner in a partnership and his or her spouse shall not be deemed to be employees with respect to the partnership" 29 CFR 25103-3 In common with other Courts of Appeals that have held working owners do not qualify as participants in ERISA-governed employee benefit plans, the Sixth Circuit apparently understood the regulation to provide a generally applicable definition of the term "employee," controlling for all Title I purposes Fugarino, 969 F 2d, at 185-186 ("As a result of [the] regulatio[n], a plan whose sole beneficiaries are the company's owners cannot qualify as a plan under ERISA Further, an employer cannot ordinarily be an employee or participant under ERISA" (citation omitted)) See also Kwatcher, 879 F 2d, at 961 ("By its terms, the regulation unambiguously debars a sole shareholder from `employee' status, notwithstanding that he may work for the corporation he owns, shoulder to shoulder with eligible (non-owner) employees"); Giardono, 867 F 2d, at 412 ("[This] regulatio[n] exclude[s] from the definition of an employee any individual who wholly owns a trade or business, whether incorporated or unincorporated") 20 Almost eight years after its decision in Fugarino, in the Sixth Circuit implied that it may have misread the regulation: "Th[e] limiting definition of employee [in 25103-3(c)] addresses the threshold issue of whether an ERISA plan exists It is not consistent with the purpose of ERISA to apply this limiting definition of employee to the statutory definitions of participant and beneficiary" 205 F3d, at 303 The Circuit, however, did not overrule its earlier interpretation See 287 F3d, ("[T]he three judge panel before which this appeal is currently pending has no authority to overrule Fugarino"); 205 F 3d, at The Department of Labor's advisory opinion, see interprets the "Employee benefit plan" regulation as follows: "In its regulation at 29 C F R 25103-3, the Department clarified that the term `employee benefit plan' as defined in section 3(3) of Title I does not include a plan the only participants of which are `[a]n individual and his or her spouse with respect to a trade of business, whether incorporated or unincorporated, which is wholly owned by the individual or by the individual and his or her spouse' or `[a] partner in a partnership and his or her spouse' The regulation further specifies, however, that a plan that covers as participants `one or more common law employees, in addition to the self-employed individuals' will be included in the definition of `employee benefit plan' under section 3(3) The conclusion of this opinion, that such `self-employed individuals' are themselves `participants' in the covered plan, is fully consistent with that regulation" Advisory Opinion 99-04A, at 561, n 7 (emphasis added) This agency view, overlooked by the Sixth Circuit, see Brief for United States as Amicus Curiae 26, merits the Judiciary's 21 respectful consideration Cf Clackamas Gastroenterology Associates, P C, 538 U S, at 449 The Department's regulation itself reveals the definitional prescription's limited scope The prescription describes "employees" only "[f]or purposes of this section," i e, the section defining "employee benefit plans" Accordingly, the regulation addresses only what plans qualify as "employee benefit plans" under Title I of ERISA Plans that cover only sole owners or partners and their spouses, the regulation instructs, fall outside Title I's domain[6] Plans covering working owners and their nonowner employees, on the other hand, fall entirely within ERISA's compass[7] See 188 F 3d, at ("We interpret the regulatio[n] to define employee only for purposes of determining the existence of an ERISA plan"); 11 F 3d, at 449- ("[T]he regulation does not govern the issue of whether someone is a `participant' in an ERISA plan, once the existence of that plan has been established This makes perfect sense: once a plan has been established, it would be anomalous to have those persons benefitting from it governed by two disparate sets of legal obligations") Also in common with other Courts of Appeals that have denied participant status to working owners, the Sixth Circuit's leading decision mistakenly relied, in addition, on ERISA's "anti-inurement" provision, 29 US C 1103(c)(1), which prohibits plan assets from inuring to the benefit of employers See Fugarino, 969 F 2d, at 186 ("A fundamental requirement of ERISA is that `the assets of a plan shall never inure to the benefit of any employer '"); Kwatcher, 879 F 2d, at 960 ("Once a person has been found to fit within the `employer' integument, [ 1103(c)(1)] prohibits payments to him from a qualified plan"); Giardono, 867 F 2d, at 411 ("It is a fundamental requirement of ERISA that ` the assets of a plan shall never inure to the benefit of any employer '") Correctly read, however, the anti-inurement provision does not preclude Title I coverage of working owners as plan participants It states that, with enumerated exceptions, "the assets of a plan shall never inure to the benefit of any employer and shall be held for the exclusive purposes of providing benefits to participants in the plan and their beneficiaries and defraying reasonable expenses of administering the plan" 29 US C 1103(c)(1) The provision demands only that plan assets be held for supplying benefits to plan participants Like the Department of Labor regulation, see the anti-inurement provision does not address the discrete question whether working owners, along with nonowner employees, may be participants in ERISA-sheltered plans As the Fifth Circuit observed in : 23 "Th[e] [anti-inurement] provision refers to the congressional determination that funds contributed by the employer (and, obviously, by the [nonowner] employees ) must never revert to the employer; it does not relate to plan benefits being paid with funds or assets of the plan to cover a legitimate pension or health benefit claim by an employee who happens to be a stockholder or even the sole shareholder of a corporation" 188 F3d, at 293, n 5 ERISA's anti-inurement provision is based on the analogous exclusive benefit provision in the IRC, 26 US C 401(a)(2), which has never been understood to bar tax-qualified plan participation by working owners See H R Conf Rep No 93-1280, pp -303 (1974); Brief for United States as Amicus Curiae 29 The purpose of the anti-inurement provision, in common with ERISA's other fiduciary responsibility provisions, is to apply the law of trusts to discourage abuses such as self-dealing, imprudent investment, and misappropriation of plan assets, by employers and others See, e g, Prudential Ins Co of Am v Doe, 76 F3d 206, Those concerns are not implicated by paying benefits to working owners who participate on an equal basis with nonowner employees in ERISA-protected plans In sum, the anti-inurement provision, like the Department of Labor regulation, establishes no categorical barrier to working owner participation in ERISA plans Whether Yates himself, in his handling of loan repayments, see engaged in conduct inconsistent with the anti-inurement provision is an issue not yet reached by the courts below, one on which we express no opinion * * For the reasons stated, the judgment of the Court of Appeals for the Sixth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion, *24 including consideration of questions earlier raised but not resolved Specifically, given the undisputed facts concerning Yates's handling of the loan, ie, his failure to honor the periodic repayment requirements: (1) Did the November close-to-bankruptcy repayments, despite the prior defaults, become "a portion of [Yates's] interest in a qualified retirement plan excluded from his bankruptcy estate," App to Pet for Cert 40a; and (2) if so, were the repayments "beyond the reach of [the Bankruptcy] [T]rustee's power to avoid and recover preferential transfers," id, at 47a? It is so ordered JUSTICE SCALIA, concurring in the judgment	1,938
Justice Scalia	concurring	false	Raymond B. Yates, MD, PC Profit Sharing Plan v. Hendon	2004-03-02	null	https://www.courtlistener.com/opinion/134722/raymond-b-yates-md-pc-profit-sharing-plan-v-hendon/	https://www.courtlistener.com/api/rest/v3/clusters/134722/	2,004	2003-038	2	9	0	The Court uses a sledgehammer to kill a gnat though it may be a sledgehammer prescribed by United States v. Mead Corp., 533 U.S. 218 (2001). I dissented from that case, see id., at 257, and remain of the view that authoritative interpretations of law by the implementing agency, if reasonable, are entitled to respect. Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). In the present case the Solicitor General of the United States, in a brief signed by the Acting Solicitor of Labor, has put forward as the "considered view of the agency charged by Congress with the administration and enforcement of Title I of ERISA," an interpretation of the relevant terms of that Act which would allow working owners (including sole owners, such as Dr. Yates) to be plan participants under the Employee Retirement Income Security Act of 1974 (ERISA). Brief for United States as Amicus Curiae 26. There is no doubt that this position is the official view of the Department of Labor, and that it has not been contrived for this litigation. The Solicitor General's brief relies upon a Department of Labor advisory opinion, issued more than five years ago, which concluded that "the statutory provisions of ERISA, taken as a whole, reveal a clear Congressional design to include `working owners' within the definition of `participant' 25 for purposes of Title I of ERISA." Pension and Welfare Benefits Admin., U. S. Dept. of Labor, Advisory Opinion 99-04A (Feb. 4, 1999), 26 BNA Pension and Benefits Rep. 559, 560 (1999). The Department's interpretive conclusion is certainly reasonable (the Court's lengthy analysis says that it is inevitable); it is therefore binding upon us. See Barnhart v. Thomas, 540 U.S. 20, 26 (2003). I would reverse the judgment of the Sixth Circuit on that basis. The Court's approach, which denies many agency interpretations their conclusive effect and thrusts the courts into authoritative judicial interpretation, deprives administrative agencies of two of their principal virtues: (1) the power to resolve statutory questions promptly, and with nationwide effect, and (2) the power (within the reasonable bounds of the text) to change the application of ambiguous laws as time and experience dictate. The Court's approach invites lengthy litigation in all the circuits the product of which (when finally announced by this Court) is a rule of law that only Congress can change. JUSTICE THOMAS, concurring in the judgment. I agree with the Court that the judgment of the Court of Appeals should be reversed. The Court persuasively addresses the Court of Appeals' many errors in this case. See ante, at 18-23. I do not, however, find convincing the Court's reliance on textual "indications," ante, at 12. The text of the Employee Retirement Income Security Act of 1974 (ERISA) is certainly consistent with the Court's interpretation of the word "employee" to include so-called "working owners."[]Ibid. However, the various Title I exemptions relied upon so heavily by the Court, see ante, at 13-15, *26 are equally consistent with an interpretation of "employee" that would not include all "working owners." As an example, the Court places weight on the exception to the exemption from 29 U.S. C. § 1106, which bars loans made to parties in interest that are "`made available to highly compensated employees . . . in an amount greater than the amount made available to other employees.'" Ante, at 15 (quoting 29 U.S. C. § 1108(b)(1)(B)). The Court notes that "some working owners . . . qualify as `highly compensated employees.'" Ante, at 15. That may be true, but there are surely numerous "highly compensated employees" who would both be "employees" under the usual, common-law meaning of that term (and hence "employees" under ERISA, see Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318 (1992)), and would also not be considered "working owners" as the Court uses the term. It is entirely possible, then, that Congress was merely attempting to exclude these individuals from § 1106, rather than assuming that all "working owners" were "employees." Hence, the existence of this exception tells us nothing about whether Congress "intended working owners" to be "employees" under ERISA. Ante, at 12. Since the text is inconclusive, we must turn to the common-law understanding of the term "employee." Darden, supra, at 322-323. On remand, then, I would direct the Court of Appeals to address whether the common-law understanding of the term "employee," as used in ERISA, includes Dr. Yates. I would be surprised if it did not, see In re Baker, 114 F.3d 636, 639 (CA7 1997) (corporation's separate legal existence from shareholder must be respected); Madonia v. Blue Cross & Blue Shield of Virginia, 11 F.3d 444, 448-449 (CA4 1993) (same), but this is a matter best resolved, in the first instance, by the court below.	The Court uses a sledgehammer to kill a gnat though it may be a sledgehammer prescribed by United I dissented from that case, see and remain of the view that authoritative interpretations of law by the implementing agency, if reasonable, are entitled to respect. Chevron U. S. A. In the present case the Solicitor General of the United States, in a brief signed by the Acting Solicitor of Labor, has put forward as the "considered view of the agency charged by Congress with the administration and enforcement of Title I of ERISA," an interpretation of the relevant terms of that Act which would allow working owners (including sole owners, such as Dr. Yates) to be plan participants under the Employee Retirement Income Security Act of 1974 (ERISA). Brief for United States as Amicus Curiae There is no doubt that this position is the official view of the Department of Labor, and that it has not been contrived for this litigation. The Solicitor General's brief relies upon a Department of Labor advisory opinion, issued more than five years ago, which concluded that "the statutory provisions of ERISA, taken as a whole, reveal a clear Congressional design to include `working owners' within the definition of `participant' 25 for purposes of Title I of ERISA." Pension and Welfare Benefits Admin., U. S. Dept. of Labor, Advisory Opinion 99-04A (Feb. 4, 1999), BNA Pension and Benefits Rep. 559, 560 (1999). The Department's interpretive conclusion is certainly reasonable (the Court's lengthy analysis says that it is inevitable); it is therefore binding upon us. See I would reverse the judgment of the Sixth Circuit on that basis. The Court's approach, which denies many agency interpretations their conclusive effect and thrusts the courts into authoritative judicial interpretation, deprives administrative agencies of two of their principal virtues: (1) the power to resolve statutory questions promptly, and with nationwide effect, and (2) the power (within the reasonable bounds of the text) to change the application of ambiguous laws as time and experience dictate. The Court's approach invites lengthy litigation in all the circuits the product of which (when finally announced by this Court) is a rule of law that only Congress can change. JUSTICE THOMAS, concurring in the judgment. I agree with the Court that the judgment of the Court of Appeals should be reversed. The Court persuasively addresses the Court of Appeals' many errors in this case. See ante, at 18-23. I do not, however, find convincing the Court's reliance on textual "indications," ante, at 12. The text of the Employee Retirement Income Security Act of 1974 (ERISA) is certainly consistent with the Court's interpretation of the word "employee" to include so-called "working owners."[]Ibid. However, the various Title I exemptions relied upon so heavily by the Court, see ante, at 13-15, * are equally consistent with an interpretation of "employee" that would not include all "working owners." As an example, the Court places weight on the exception to the exemption from 29 U.S. C. 1106, which bars loans made to parties in interest that are "`made available to highly compensated employees in an amount greater than the amount made available to other employees.'" Ante, at 15 (quoting 29 U.S. C. 1108(b)(1)(B)). The Court notes that "some working owners qualify as `highly compensated employees.'" Ante, at 15. That may be true, but there are surely numerous "highly compensated employees" who would both be "employees" under the usual, common-law meaning of that term ), and would also not be considered "working owners" as the Court uses the term. It is entirely possible, then, that Congress was merely attempting to exclude these individuals from 1106, rather than assuming that all "working owners" were "employees." Hence, the existence of this exception tells us nothing about whether Congress "intended working owners" to be "employees" under ERISA. Ante, at 12. Since the text is inconclusive, we must turn to the common-law understanding of the term "employee." On remand, then, I would direct the Court of Appeals to address whether the common-law understanding of the term "employee," as used in ERISA, includes Dr. Yates. I would be surprised if it did not, see In re Baker, ; but this is a matter best resolved, in the first instance, by the court below.	1,939
per_curiam	per_curiam	true	Abdur'Rahman v. Bell	2002-12-10	null	https://www.courtlistener.com/opinion/122249/abdurrahman-v-bell/	https://www.courtlistener.com/api/rest/v3/clusters/122249/	2,002	2002-010	1	8	1	The writ of certiorari is dismissed as improvidently granted.	The writ of certiorari is dismissed as improvidently granted.	1,946
Justice Stevens	dissenting	true	Abdur'Rahman v. Bell	2002-12-10	null	https://www.courtlistener.com/opinion/122249/abdurrahman-v-bell/	https://www.courtlistener.com/api/rest/v3/clusters/122249/	2,002	2002-010	1	8	1	The Court's decision to dismiss the writ of certiorari as improvidently granted presumably is motivated, at least in part, by the view that the jurisdictional issues presented by this case do not admit of an easy resolution.[1] I do not share that view. Moreover, I believe we have an obligation to provide needed clarification concerning an important issue that has generated confusion among the federal courts, namely, the availability of Federal Rule of Civil Procedure 60(b) motions to challenge the integrity of final orders entered in habeas corpus proceedings. I therefore respectfully dissent from the Court's disposition of the case. I In 1988 the Tennessee Supreme Court affirmed petitioner's conviction and his death sentence. His attempts to obtain 90 postconviction relief in the state court system were unsuccessful. In 1996 he filed an application for a writ of habeas corpus in the Federal District Court advancing several constitutional claims, two of which raised difficult questions. The first challenged the competency of his trial counsel and the second made serious allegations of prosecutorial misconduct. After hearing extensive evidence on both claims, on April 8, 1998, the District Court entered an order granting relief on the first claim, but holding that the second was procedurally barred because it had not been fully exhausted in the state courts. Abdur'Rahman v. Bell, 999 F. Supp. 1073 (MD Tenn. 1998). The procedural bar resulted from petitioner's failure to ask the Supreme Court of Tennessee to review the lower state courts' refusal to grant relief on the prosecutorial misconduct claim. Id., at 1080-1083. The District Court's ruling that the claim had not been fully exhausted appeared to be correct under Sixth Circuit precedent[2] and it was consistent with this Court's later holding in O'Sullivan v. Boerckel, 526 U.S. 838 (1999). In response to our decision in O'Sullivan, however, the Tennessee Supreme Court on June 28, 2001, adopted a new rule that changed the legal landscape. See In re: Order Establishing Rule 39, Rules of the Supreme Court of Tennessee: Exhaustion of Remedies. App. 278. That new rule made it perfectly clear that the District Court's procedural bar holding was, in fact, erroneous.[3] 91 The warden appealed from the District Court's order granting the writ, but petitioner did not appeal the ruling that his prosecutorial misconduct claim was procedurally barred. The Court of Appeals set aside the District Court's grant of relief to petitioner, 226 F.3d 696 (CA6 2000), and we denied his petition for certiorari on October 9, 2001, 534 U.S. 970. The proceedings that were thereafter initiated raised the questions the Court now refuses to decide. On November 2, 2001, petitioner filed a motion, pursuant to Rule 60(b) of the Federal Rules of Civil Procedure,[4] seeking relief from the District Court judgment entered on April 8, 1998. The motion did not assert any new constitutional claims and did not rely on any newly discovered evidence. It merely asked the District Court to set aside its 1998 order terminating the habeas corpus proceeding and to decide the merits of the prosecutorial misconduct claim that had been held to be procedurally barred. The motion relied on the 92 ground that the Tennessee Supreme Court's new Rule 39 demonstrated that the District Court's procedural bar ruling had been based on a mistaken premise. Relying on Sixth Circuit precedent,[5] on November 27, 2001, the District Court entered an order that: (1) characterized the motion as a "second or successive habeas corpus application" governed by 28 U.S. C. § 2244; (2) held that the District Court was therefore without jurisdiction to decide the motion;[6] and (3) transferred the case to the Court of Appeals pursuant to § 1631.[7] Petitioner sought review of that order in both the District Court and the Court of Appeals. In the District Court, petitioner filed a notice of appeal and requested a certificate of appealability. See Civil Docket for Case No. 96-CV-380 (MD Tenn., Apr. 23, 1996), App. 11. In the Court of Appeals, petitioner filed the notice of appeal, again sought a certificate of appealability, and moved the court to consolidate the appeal of the District Court's Rule 60(b) ruling with his pre-existing 93 appeal of his original federal habeas petition. Id., at 28. On January 18, 2002, the Court of Appeals entered an order that endorsed the District Court's disposition of the Rule 60(b) motion, specifically including its characterization of the motion as a successive habeas petition. Nos. 98-6568/6569, 01-6504 (CA6), p. 2, App. 35, 36. In that order the Court of Appeals stated that the "district court properly found that a Rule 60(b) motion is the equivalent of a successive habeas corpus petition," and then held that Abdur' Rahman's petition did not satisfy the gateway criteria set forth in § 2244(b)(2) for the filing of such a petition. Ibid. It concluded that "all relief requested to this panel is denied." Id., at 37. In a second order, entered on February 11, 2002, Nos. 98-6568/6569, 01-6504 (CA6), id., at 38, the Court of Appeals referred to additional filings by petitioner and denied them all.[8] Thereafter we stayed petitioner's execution and granted his petition for certiorari to review the Court of Appeals' disposition of his Rule 60(b) motion.[9] 535 U.S. 1016 (2002). II The answer to the jurisdictional questions that we asked the parties to address depends on whether the motion that petitioner filed on November 2, 2001, was properly styled as 94 a Rule 60(b) motion, or was actually an application to file a second or successive habeas corpus petition, as the Court of Appeals held. If it was the latter, petitioner clearly failed to follow the procedure specified in 28 U.S.C. §2244(b)(3)(A).[10] On the other hand, it is clear that if the motion was a valid Rule 60(b) filing, the Court of Appeals had jurisdiction to review the District Court's denial of reliefeither because that denial was a final order from which petitioner filed a timely appeal, or because the District Court had transferred the matter to the Court of Appeals pursuant to § 1631.[11] In either event the issue was properly before the Court of Appeals, andsince the jurisdictional bar in § 2244(b)(3)(E) does not apply to Rule 60(b) motionswe certainly have jurisdiction to review the orders that the Court of Appeals entered on January 18 and February 11, 2002. Thus, in order to resolve both the jurisdictional issues and the questions presented in the certiorari petition, it is necessary to identify the difference, if any, between a Rule 60(b) motion and a second or successive habeas corpus application. As Judge Tjoflat explained in a recent opinion addressing that precise issue, the difference is defined by the relief that the applicant seeks. Is he seeking relief from a federal court's final order entered in a habeas proceeding on one or more of the grounds set forth in Rule 60(b), or is he seeking relief from a state court's judgment of conviction on the basis of a new constitutional claim? Referring to the difference 95 between a Rule 60(b) motion and a "second or successive" habeas corpus petition, Judge Tjoflat wrote: "The distinction lies in the harm each is designed to cure. A `second or successive' habeas corpus petition, as discussed above, is meant to address two specific types of constitutional claims by prisoners: (1) claims that `rel[y] on a new rule of constitutional law,' and (2) claims that rely on a rule of constitutional law and are based on evidence that `could not have been discovered previously through the exercise of due diligence' and would establish the petitioner's factual innocence. 28 U.S.C. § 2244(b)(3)(A). Neither of these types of claims challenges the district court's previous denial of relief under 28 U.S.C. § 2254. Instead, each alleges that the contextual circumstances of the proceeding have changed so much that the petitioner's conviction or sentence now runs afoul of the Constitution. "In contrast, a motion for relief under Rule 60 of the Federal Rules of Civil Procedure contests the integrity of the proceeding that resulted in the district court's judgment. . . . . . "When a habeas corpus petitioner moves for relief under, for example, Rule 60(b)(3), he is impugning the integrity of the district court's judgment rejecting his petition on the ground that the State obtained the judgment by fraud. Asserting this claim is quite different from contending, as the petitioner would in a successive habeas corpus petition, that his conviction or sentence was obtained `in violation of the Constitution or laws or treaties of the United States.' 28 U.S. C. § 2254(a). "In sum, a `second or successive' habeas corpus petition, like all habeas corpus petitions, is meant to remedy constitutional violations (albeit ones which arise out of facts discovered or laws evolved after an initial habeas corpus proceeding), while a Rule 60(b) motion is designed 96 to cure procedural violations in an earlier proceedinghere, a habeas corpus proceedingthat raise questions about that proceeding's integrity. . . . . . "As a final note, I would add that this rule is not just consistent with case law, but it also comports with the fair and equitable administration of justice. If, for example, a death row inmate could show that the State indeed committed fraud upon the district court during his habeas corpus proceeding, it would be a miscarriage of justice if we turned a blind eye to such abuse of the judicial process. Nevertheless, this is the result that would occur if habeas corpus petitioners' Rule 60(b) motions were always considered `second or successive' habeas corpus petitions. After all, a claim of prosecutorial fraud does not rely on `a new rule of constitutional law' and may not `establish by clear and convincing evidence that ... no reasonable factfinder would have found the applicant guilty of the underlying offense.' 28 U.S. C. § 2244(b)(2). It is a claim that nonetheless must be recognized." Mobley v. Head, 306 F.3d 1096, 1100-1105 (CA11 2002) (dissenting opinion). Judge Tjoflat's reasoning is fully consistent with this Court's decisions in Stewart v. Martinez-Villareal, 523 U.S. 637 (1998), and Slack v. McDaniel, 529 U.S. 473 (2000). Applying that reasoning to the present case, it is perfectly clear that the petitioner filed a proper Rule 60(b) motion. (Whether it should have been granted is a different question.) The motion did not purport to set forth the basis for a second or successive challenge to the state-court judgment of conviction. It did, however, seek relief from the final order entered by the federal court in the habeas proceeding, and it relied on grounds that are either directly or indirectly identified in Rule 60(b) as possible bases for such relief. Essentially it submitted that the "changes in the ... legal landscape," 97 Agostini v. Felton, 521 U.S. 203, 215 (1997), effected by Tennessee's new rule demonstrated that the District Court's procedural bar ruling rested on a mistaken premise. In petitioner's view, that mistake constituted a "reason justifying relief from the operation of the judgment" within the meaning of Rule 60(b)(6). Whether one ultimately agrees or disagrees with that submission, it had sufficient arguable merit to persuade at least four Members of this Court to grant his certiorari petition. III In the District Court petitioner filed a comprehensive memorandum supporting his submission that his Rule 60(b) motion should be granted. App. 171-267. He has argued that the evidence already presented to the court proves that the prosecutor was guilty of serious misconduct; that affidavits executed by eight members of the jury that sentenced him to death establish that they would have not voted in favor of the death penalty if they had known the facts that the prosecutor improperly withheld or concealed from them; and that it is inequitable to allow an erroneous procedural ruling to deprive him of a ruling on the merits. In this Court, a brief filed by former prosecutors as amici curiae urges us to address the misconduct claim, stressing the importance of condemning the conduct disclosed by the record.[12] Arguably it would be appropriate for us to do so in order to answer the second question presented in the certiorari petition. In my opinion, however, correct procedure requires that the merits of the Rule 60(b) motion be addressed in the first instance by the District Court. The District Court has already heard the extensive evidence relevant to the prosecutorial misconduct claim, as well as the evidence that persuaded both the Tennessee appellate court and two federal courts that petitioner's trial counsel *98 was ineffective (relief was denied on this claim based on a conclusion that counsel's ineffectiveness did not affect the outcome of the trial). That court is, therefore, in the best position to evaluate the equitable considerations that may be taken into account in ruling on a Rule 60(b) motion. Moreover, simply as a matter of orderly procedure, the court in which the motion was properly filed is the one that should first evaluate its merits. The Court of Appeals for the Sixth Circuit plainly erred when it characterized petitioner's Rule 60(b) motion as an application for a second or successive habeas petition and denied relief for that reason. The "federalism" concerns that motivated this Court's misguided decisions in Coleman v. Thompson, 501 U.S. 722 (1991),[13] and O'Sullivan v. Boerckel, 526 U.S. 838 (1999), do not even arguably support the Sixth Circuit's disposition of petitioner's motion. I would therefore vacate the orders that that court entered on January 18 and February 11, 2002, and remand the case to that court with instructions to direct the District Court to rule on the merits of the Rule 60(b) motion.	The Court's decision to dismiss the writ of certiorari as improvidently granted presumably is motivated, at least in part, by the view that the jurisdictional issues presented by this case do not admit of an easy resolution.[1] I do not share that view. Moreover, I believe we have an obligation to provide needed clarification concerning an important issue that has generated confusion among the federal courts, namely, the availability of Federal Rule of Civil Procedure 60(b) motions to challenge the integrity of final orders entered in habeas corpus proceedings. I therefore respectfully dissent from the Court's disposition of the case. I In 1988 the Tennessee Supreme Court affirmed petitioner's conviction and his death sentence. His attempts to obtain 90 postconviction relief in the state court system were unsuccessful. In 1996 he filed an application for a writ of habeas corpus in the Federal District Court advancing several constitutional claims, two of which raised difficult questions. The first challenged the competency of his trial counsel and the second made serious allegations of prosecutorial misconduct. After hearing extensive evidence on both claims, on April 8, the District Court entered an order granting relief on the first claim, but holding that the second was procedurally barred because it had not been fully exhausted in the state courts. The procedural bar resulted from petitioner's failure to ask the Supreme Court of Tennessee to review the lower state courts' refusal to grant relief on the prosecutorial misconduct claim. The District Court's ruling that the claim had not been fully exhausted appeared to be correct under Sixth Circuit precedent[2] and it was consistent with this Court's later holding in In response to our decision in O'Sullivan, however, the Tennessee Supreme Court on June 28, 2001, adopted a new rule that changed the legal landscape. See In re: Order Establishing Rule 39, Rules of the Supreme Court of Tennessee: Exhaustion of Remedies. App. 278. That new rule made it perfectly clear that the District Court's procedural bar holding was, in fact, erroneous.[3] 91 The warden appealed from the District Court's order granting the writ, but petitioner did not appeal the ruling that his prosecutorial misconduct claim was procedurally barred. The Court of Appeals set aside the District Court's grant of relief to petitioner, and we denied his petition for certiorari on October 9, 2001, The proceedings that were thereafter initiated raised the questions the Court now refuses to decide. On November 2, 2001, petitioner filed a motion, pursuant to Rule 60(b) of the Federal Rules of Civil Procedure,[4] seeking relief from the District Court judgment entered on April 8, The motion did not assert any new constitutional claims and did not rely on any newly discovered evidence. It merely asked the District Court to set aside its order terminating the habeas corpus proceeding and to decide the merits of the prosecutorial misconduct claim that had been held to be procedurally barred. The motion relied on the 92 ground that the Tennessee Supreme Court's new Rule 39 demonstrated that the District Court's procedural bar ruling had been based on a mistaken premise. Relying on Sixth Circuit precedent,[5] on November 27, 2001, the District Court entered an order that: (1) characterized the motion as a "second or successive habeas corpus application" governed by 28 U.S. C. 2244; (2) held that the District Court was therefore without jurisdiction to decide the motion;[6] and (3) transferred the case to the Court of Appeals pursuant to 1631.[7] Petitioner sought review of that order in both the District Court and the Court of Appeals. In the District Court, petitioner filed a notice of appeal and requested a certificate of appealability. See Civil Docket for Case No. 96-CV-380 (MD Tenn., Apr. 23, 1996), App. 11. In the Court of Appeals, petitioner filed the notice of appeal, again sought a certificate of appealability, and moved the court to consolidate the appeal of the District Court's Rule 60(b) ruling with his pre-existing 93 appeal of his original federal habeas petition. On January 18, the Court of Appeals entered an order that endorsed the District Court's disposition of the Rule 60(b) motion, specifically including its characterization of the motion as a successive habeas petition. Nos. 98-6568/6569, 01-6504 (CA6), p. 2, App. 35, 36. In that order the Court of Appeals stated that the "district court properly found that a Rule 60(b) motion is the equivalent of a successive habeas corpus petition," and then held that Abdur' Rahman's petition did not satisfy the gateway criteria set forth in 2244(b)(2) for the filing of such a petition. It concluded that "all relief requested to this panel is denied." In a second order, entered on February 11, Nos. 98-6568/6569, 01-6504 (CA6), the Court of Appeals referred to additional filings by petitioner and denied them all.[8] Thereafter we stayed petitioner's execution and granted his petition for certiorari to review the Court of Appeals' disposition of his Rule 60(b) motion.[9] II The answer to the jurisdictional questions that we asked the parties to address depends on whether the motion that petitioner filed on November 2, 2001, was properly styled as 94 a Rule 60(b) motion, or was actually an application to file a second or successive habeas corpus petition, as the Court of Appeals held. If it was the latter, petitioner clearly failed to follow the procedure specified in 28 U.S.C. 2244(b)(3)(A).[10] On the other hand, it is clear that if the motion was a valid Rule 60(b) filing, the Court of Appeals had jurisdiction to review the District Court's denial of reliefeither because that denial was a final order from which petitioner filed a timely appeal, or because the District Court had transferred the matter to the Court of Appeals pursuant to 1631.[11] In either event the issue was properly before the Court of Appeals, andsince the jurisdictional bar in 2244(b)(3)(E) does not apply to Rule 60(b) motionswe certainly have jurisdiction to review the orders that the Court of Appeals entered on January 18 and February 11, Thus, in order to resolve both the jurisdictional issues and the questions presented in the certiorari petition, it is necessary to identify the difference, if any, between a Rule 60(b) motion and a second or successive habeas corpus application. As Judge Tjoflat explained in a recent opinion addressing that precise issue, the difference is defined by the relief that the applicant seeks. Is he seeking relief from a federal court's final order entered in a habeas proceeding on one or more of the grounds set forth in Rule 60(b), or is he seeking relief from a state court's judgment of conviction on the basis of a new constitutional claim? Referring to the difference 95 between a Rule 60(b) motion and a "second or successive" habeas corpus petition, Judge Tjoflat wrote: "The distinction lies in the harm each is designed to cure. A `second or successive' habeas corpus petition, as discussed above, is meant to address two specific types of constitutional claims by prisoners: (1) claims that `rel[y] on a new rule of constitutional law,' and (2) claims that rely on a rule of constitutional law and are based on evidence that `could not have been discovered previously through the exercise of due diligence' and would establish the petitioner's factual innocence. 28 U.S.C. 2244(b)(3)(A). Neither of these types of claims challenges the district court's previous denial of relief under 28 U.S.C. 2254. Instead, each alleges that the contextual circumstances of the proceeding have changed so much that the petitioner's conviction or sentence now runs afoul of the Constitution. "In contrast, a motion for relief under Rule 60 of the Federal Rules of Civil Procedure contests the integrity of the proceeding that resulted in the district court's judgment. "When a habeas corpus petitioner moves for relief under, for example, Rule 60(b)(3), he is impugning the integrity of the district court's judgment rejecting his petition on the ground that the State obtained the judgment by fraud. Asserting this claim is quite different from contending, as the petitioner would in a successive habeas corpus petition, that his conviction or sentence was obtained `in violation of the Constitution or laws or treaties of the United States.' 28 U.S. C. 2254(a). "In sum, a `second or successive' habeas corpus petition, like all habeas corpus petitions, is meant to remedy constitutional violations (albeit ones which arise out of facts discovered or laws evolved after an initial habeas corpus proceeding), while a Rule 60(b) motion is designed 96 to cure procedural violations in an earlier proceedinghere, a habeas corpus proceedingthat raise questions about that proceeding's integrity. "As a final note, I would add that this rule is not just consistent with case law, but it also comports with the fair and equitable administration of justice. If, for example, a death row inmate could show that the State indeed committed fraud upon the district court during his habeas corpus proceeding, it would be a miscarriage of justice if we turned a blind eye to such abuse of the judicial process. Nevertheless, this is the result that would occur if habeas corpus petitioners' Rule 60(b) motions were always considered `second or successive' habeas corpus petitions. After all, a claim of prosecutorial fraud does not rely on `a new rule of constitutional law' and may not `establish by clear and convincing evidence that no reasonable factfinder would have found the applicant guilty of the underlying offense.' 28 U.S. C. 2244(b)(2). It is a claim that nonetheless must be recognized." Judge Tjoflat's reasoning is fully consistent with this Court's decisions in and Applying that reasoning to the present case, it is perfectly clear that the petitioner filed a proper Rule 60(b) motion. (Whether it should have been granted is a different question.) The motion did not purport to set forth the basis for a second or successive challenge to the state-court judgment of conviction. It did, however, seek relief from the final order entered by the federal court in the habeas proceeding, and it relied on grounds that are either directly or indirectly identified in Rule 60(b) as possible bases for such relief. Essentially it submitted that the "changes in the legal landscape," 97 effected by Tennessee's new rule demonstrated that the District Court's procedural bar ruling rested on a mistaken premise. In petitioner's view, that mistake constituted a "reason justifying relief from the operation of the judgment" within the meaning of Rule 60(b)(6). Whether one ultimately agrees or disagrees with that submission, it had sufficient arguable merit to persuade at least four Members of this Court to grant his certiorari petition. III In the District Court petitioner filed a comprehensive memorandum supporting his submission that his Rule 60(b) motion should be granted. App. 171-267. He has argued that the evidence already presented to the court proves that the prosecutor was guilty of serious misconduct; that affidavits executed by eight members of the jury that sentenced him to death establish that they would have not voted in favor of the death penalty if they had known the facts that the prosecutor improperly withheld or concealed from them; and that it is inequitable to allow an erroneous procedural ruling to deprive him of a ruling on the merits. In this Court, a brief filed by former prosecutors as amici curiae urges us to address the misconduct claim, stressing the importance of condemning the conduct disclosed by the record.[12] Arguably it would be appropriate for us to do so in order to answer the second question presented in the certiorari petition. In my opinion, however, correct procedure requires that the merits of the Rule 60(b) motion be addressed in the first instance by the District Court. The District Court has already heard the extensive evidence relevant to the prosecutorial misconduct claim, as well as the evidence that persuaded both the Tennessee appellate court and two federal courts that petitioner's trial counsel *98 was ineffective (relief was denied on this claim based on a conclusion that counsel's ineffectiveness did not affect the outcome of the trial). That court is, therefore, in the best position to evaluate the equitable considerations that may be taken into account in ruling on a Rule 60(b) motion. Moreover, simply as a matter of orderly procedure, the court in which the motion was properly filed is the one that should first evaluate its merits. The Court of Appeals for the Sixth Circuit plainly erred when it characterized petitioner's Rule 60(b) motion as an application for a second or successive habeas petition and denied relief for that reason. The "federalism" concerns that motivated this Court's misguided decisions in[13] and do not even arguably support the Sixth Circuit's disposition of petitioner's motion. I would therefore vacate the orders that that court entered on January 18 and February 11, and remand the case to that court with instructions to direct the District Court to rule on the merits of the Rule 60(b) motion.	1,947
Justice Ginsburg	majority	false	Nelson v. Adams USA, Inc.	2000-04-25	null	https://www.courtlistener.com/opinion/118358/nelson-v-adams-usa-inc/	https://www.courtlistener.com/api/rest/v3/clusters/118358/	2,000	1999-052	2	9	0	This litigation began when Ohio Cellular Products Corporation (OCP) sued respondent Adams USA, Inc. (Adams), claiming patent infringement. The District Court eventually dismissed OCP's claim and ordered OCP to pay Adams' costs and attorney fees. Adams feared that OCP might be unable to pay the fee award and therefore sought a means to recover from petitioner Nelson, president and sole shareholder 463 of OCP, in his individual capacity. In pursuit of that objective, Adams moved under Rule 15 of the Federal Rules of Civil Procedure to amend its pleading to add Nelson as a party; Adams also asked the court, under Rule 59(e), to amend the fee award. The District Court granted the motion in full, simultaneously making Nelson a party and subjecting him to judgment. The Court of Appeals affirmed. We hold that the District Court erred in amending the judgment immediately upon permitting amendment of the pleading. Due process, as reflected in Rule 15 as well as Rule 12, required that Nelson be given an opportunity to respond and contest his personal liability for the award after he was made a party and before the entry of judgment against him. I OCP and its successor corporation held two patents relating to the method of manufacturing a foamed padding used in athletic equipment. In 1994, OCP sued Adams for infringement. Adams maintained that the patents had been anticipated by prior art and were therefore invalid under 35 U.S. C. § 102(b). The District Court ruled in Adams' favor and dismissed the infringement complaint. Adams then moved for attorney fees and costs. The District Court granted the motion on the ground that Nelson, who was at all relevant times president and sole shareholder of OCP, had deceitfully withheld the prior art from the United States Patent and Trademark Office. This behavior, the District Court concluded, constituted inequitable conduct chargeable to OCP. On January 20, 1998, the District Court awarded Adams costs and fees in the amount of $178,888.51 against OCP. Adams feared, however, that it would be unable to collect the award. This was an altogether understandable concern; it stemmed from a letter OCP's counsel had sent Adams warning that OCP would be liquidated if exposed to a judgment for fees more than nominal in amount. Adams therefore 464 moved to amend its pleading to add Nelson, personally, as a party from whom fees could be collected. In this postjudgment endeavor, Adams reasoned that Nelson was the flesh-and-blood party behind OCP, the person whose conduct in withholding prior art precipitated the fee award, and a person with funds sufficient to satisfy that award. The District Court granted the motion. Adams' motion, however, sought more than permission to amend the pleading. It sought simultaneously an amended judgment, subjecting Nelson to liability as soon as he was made a party. See Record, Doc. No. 126, p. 1 ("Defendants [i. e., Adams] hereby move the Court . . . for an order granting Defendants leave to amend their third party complaint to name Donald E. Nelson (Nelson) as a third party defendant in his individual capacity, and amending the judgment in this action to include Nelson as an additional party against whom judgment is entered."). In presenting the motion, Adams offered no reason why the judgment should be altered immediately. See id., at 7-8. The motion did contend that an amendment to the judgment was "necessary to prevent manifest injustice," id., at 8 (internal quotation marks omitted), but it did not explain why Nelson, once joined as a party, should not be permitted to state his side of that argument. The District Court seems not to have paused over this question, for it allowed the pleading amendment and altered the judgment at a single stroke. Record, Doc. No. 131. The memorandum explaining the District Court's decision addressed only the propriety of adding Nelson as a party. It did not address the propriety of altering the judgment at the very same time. Record, Doc. No. 130, at 3-7. The Court of Appeals for the Federal Circuit affirmed the amended judgment against Nelson. Ohio Cellular Prods. Corp. v. Adams USA, Inc., 175 F.3d 1343 (1999). It was "uncommon," the appeals court acknowledged, to add a party after the entry of judgment. Id., at 1348. The court concluded, 465 however, that Nelson had not been prejudiced by the postjudgment joinder. The Federal Circuit based that conclusion on Nelson's failure to show that "anything different or additional would have been done" to stave off the judgment had Nelson been a party, in his individual capacity, from the outset of the litigation. Id., at 1351. The panel, over a vigorous dissent by Judge Newman, was apparently satisfied that adding Nelson as a party and simultaneously amending the judgment to obligate him individually met due process requirements. See id., at 1345, 1349, n. 5. We granted certiorari, 528 U.S. 1018 (1999). In his request for this Court's review, Nelson did not dispute the portion of the District Court's order that granted Adams leave to amend its pleading to add Nelson as a party against whom costs and fees were sought. Pet. for Cert. 11. What he does challenge, and what is now before us, is the portion of the District Court's order that immediately adjudged Nelson personally liable the moment he was made a party. II A The Federal Rules of Civil Procedure are designed to further the due process of law that the Constitution guarantees. Cf. Fed. Rule Civ. Proc. 1 (Rules "shall be construed and administered to secure the just, speedy, and inexpensive determination of every action."). Rule 15 sets out the requirements for amended and supplemental pleadings. On that score, the Court of Appeals observed that as long as no undue prejudice is shown, "due process requirements are met if the requirements of Rule 15 are met." 175 F.3d, at 1349, n. 5. But in the instant case, the requirements of Rule 15 were not met. As Judge Newman recognized in her dissent below, due process does not countenance such swift passage from pleading to judgment in the pleader's favor. See id., at 1352. 466 The propriety of allowing a pleading alteration depends not only on the state of affairs prior to amendment but also on what happens afterwards. Accordingly, Rule 15 both conveys the circumstances under which leave to amend shall be granted and directs how the litigation will move forward following an amendment. When a court grants leave to amend to add an adverse party after the time for responding to the original pleading has lapsed, the party so added is given "10 days after service of the amended pleading" to plead in response. Fed. Rule Civ. Proc. 15(a). This opportunity to respond, fundamental to due process, is the echo of the opportunity to respond to original pleadings secured by Rule 12. See Fed. Rule Civ. Proc. 12(a)(1). Thus, Rule 15 assumes an amended pleading will be filed and anticipates service of that pleading on the adverse party. Nelson was never served with an amended pleading. Indeed, no such pleading was ever actually composed and filed in court. Nor, after the amendment naming him as a party, was Nelson accorded 10 days to state his defenses against personal liability for costs and fees. Instead, judgment was entered against him the moment permission to amend the pleading was granted. Appeal after judgment, in the circumstances this case presents, did not provide an adequate opportunity to defend against the imposition of liability. Cf. American Surety Co. v. Baldwin, 287 U.S. 156 (1932). Adams points to nothing in the record indicating that Nelson affirmatively relinquished his right to respond on the merits of the case belatedly stated against him in his individual capacity. Accordingly, the proceedings did not comply with Rule 15, and neither did they comport with due process. See, e. g., Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950) ("`The fundamental requisite of due process of law is the opportunity to be heard.' ") (quoting Grannis v. Ordean, 234 U.S. 385, 394 (1914)). It is true that Nelson knew as soon as Adams moved to amend the pleading and alter the judgment that he might ultimately be subjected to personal liability. One could 467 ask, therefore, whether Nelson in fact had a fair chance, before alteration of the judgment, to respond and be heard. Rule 15 and the due process for which it provides, however, demand a more reliable and orderly course. First, as the Rule indicates, pleading in response to an amended complaint is a prerogative of parties, see Fed. Rule Civ. Proc. 15(a), and Nelson was not a party prior to the District Court's ruling on Adams' motion to amend. Second, as Rule 15 further prescribes, the clock on an added party's time to respond does not start running until the new pleading naming that party is served, see ibid., just as the clock on an original party's time to respond does not start running until the original pleading is served, see Fed. Rule Civ. Proc. 12(a)(1)(A). This is not to say that Rule 15 is itself a constitutional requirement. Beyond doubt, however, a prospective party cannot fairly be required to answer an amended pleading not yet permitted, framed, and served.[1] In support of its holding that Nelson was not prejudiced when added as a party and subjected to judgment, the Federal Circuit relied on its prior decision in Fromson v. Citiplate, Inc., 886 F.2d 1300 (1989). See 175 F.3d, at 1349 1350, and n. 7. The reliance is puzzling, for the circumstances in Fromson were crucially different from those presented here. The plaintiff in Fromson prevailed on an infringement claim and subsequently moved to hold the owners of the judgment-proof defendant corporation individually liable. To that extent only, Fromson resembles the 468 instant case. Notably unlike Adams, however, the plaintiff in Fromson had moved before trial to add the individual owners as parties, because it suspected from the start that the defendant corporation might not be able to pay. The District Court denied that motion in reliance on the defendant corporation's false assurances that it was solvent. See 886 F.2d, at 1301, 1304. Having been informed before trial that the plaintiffs sought to sue them in their individual capacities, and having acted deliberately to derail such a suit, the owners of the defendant corporation in Fromson could hardly assert that another's mistake or choice of whom to sue had compromised their ability to defend. Their problem, the Federal Circuit aptly observed in its Fromson opinion, was "a bed of their own making." Id., at 1304. Here, in contrast, Adams never sought to sue Nelson individually until after judgment was entered against OCP. Nor is there any indication that Adams initially sought relief solely against OCP because of some false assurance regarding OCP's solvency. To summarize, Nelson was never afforded a proper opportunity to respond to the claim against him. Instead, he was adjudged liable the very first moment his personal liability was legally at issue. Procedure of this style has been questioned even in systems, real and imaginary, less concerned than ours with the right to due process.[2] 469 B Adams strongly urges, however, that Nelson waived his objections to the swift process of the District Court. Adams first maintains that Nelson waived arguments based on personal jurisdiction and the absence of service of process by failing to raise them promptly after being added as a party. Brief for Respondents 32-41. Nelson's winning argument, however, is based neither on personal jurisdiction nor on service of process. It rests on his right to have time and opportunity to respond to the claim once Adams gained leave to sue Nelson in his individual capacity, and thereby to reach beyond OCP's corporate till into Nelson's personal pocket. Waiver of arguments based on personal jurisdiction and service of process is therefore beside the point.[3] In a similar vein, and this time coming closer to the dispositive issue, Adams submits that the Federal Circuit "did not address the `due process' issues now sought to be presented, . . . because these issues were never raised by Petitioner" before that court. Id., at 47 (emphasis deleted). It is indeed the general rule that issues must be raised in lower courts in order to be preserved as potential grounds of decision in higher courts. But this principle does not demand the incantation of particular words; rather, it requires that the lower court be fairly put on notice as to the substance of the issue. See, e. g., Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 174-175 (1988). And the general rule 470 does not prevent us from declaring what due process requires in this case, for that matter was fairly before the Court of Appeals. In response to questioning from the appellate bench, Nelson's counsel explained that the core of his client's argument was the fundamental unfairness of imposing judgment without going through the process of litigation our rules of civil procedure prescribe.[4] Both the majority and the dissent in the Federal Circuit understood that an issue before them concerned the process due after Adams' postjudgment motion. See 175 F.3d, at 1349, n. 5 (majority opinion); id., at 1352 (Newman, J., dissenting). Our resolution of the case as a matter of due process therefore rests on a ground considered and passed upon by the court below. Beneath Adams' technical and ultimately unavailing arguments about waiver, its essential position in the litigation is reflected in the Federal Circuit's decision: There was sufficient identity between Nelson and OCP to bind Nelson, without further ado, to a judgment already entered against OCP. Nelson was president and sole shareholder of OCP. See id., at 1346. It was Nelson who withheld prior art from the Patent Office. See id., at 1349. He had actual notice that Adams was seeking to collect a fee award from OCP, because he was the "effective controller" of the litigation for OCP and personally participated as a witness at the hearing on whether OCP had engaged in inequitable conduct. See ibid. The Federal Circuit did not conclude that these factors would have justified imposing liability on Nelson by piercing 471 OCP's corporate veil, see id., at 1349, n. 6, and Adams, for its part, has disavowed reliance on a veil-piercing theory, see Record, Doc. No. 129, at 3 (stating, before the District Court, that "Adams does not request that the Court `disregard the corporate form' "); Tape of Oral Arg. in No. 98-1448 (CA Fed. Feb. 3, 1999) (expressly stating that this case does not concern piercing the corporate veil). One-person corporations are authorized by law and should not lightly be labeled sham. See, e. g., Gregory v. Helvering, 293 U.S. 465, 469 (1935) (finding corporation a sham not because it was owned entirely by one person, but because it had "no business or corporate purpose"); Kirno Hill Corp. v. Holt, 618 F.2d 982, 985 (CA2 1980) (a corporation's veil may not be pierced merely because it has only one owner). Indeed, where patents are concerned, the one-person corporation may be an altogether appropriate means to permit innovation without exposing inventors to possibly ruinous consequences. The legitimacy of OCP as a corporation, in short, is not at issue in this case. Instead, the Federal Circuit reasoned that nothing much turned on whether the party opposing Adams' claim for costs and fees was OCP or Nelson. "[N]o basis has been advanced," the panel majority concluded, "to believe anything different or additional would have been done to defend against the allegation of inequitable conduct had Nelson individually already been added as a party or had he been a party from the outset." 175 F.3d, at 1351. We neither dispute nor endorse the substance of this speculation. We say instead that judicial predictions about the outcome of hypothesized litigation cannot substitute for the actual opportunity to defend that due process affords every party against whom a claim is stated. As Judge Newman wrote in dissent: "The law, at its most fundamental, does not render judgment simply because a person might have been found liable had he been charged." Id., at 1354. 472 Our decision surely does not insulate Nelson from liability. As counsel twice represented at oral argument, see Tr. of Oral Arg. 9, 19-20, Nelson seeks only the right to contest on the merits his personal liability for fees originally sought and awarded solely against OCP. That right, we hold, is just what due process affords him.[5] * * * For the reasons stated, 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.	This litigation began when Ohio Cellular Products Corporation (OCP) sued respondent Adams USA, Inc. (Adams), claiming patent infringement. The District Court eventually dismissed OCP's claim and ordered OCP to pay Adams' costs and attorney fees. Adams feared that OCP might be unable to pay the fee award and therefore sought a means to recover from petitioner Nelson, president and sole shareholder 463 of OCP, in his individual capacity. In pursuit of that objective, Adams moved under Rule 15 of the Federal Rules of Civil Procedure to amend its pleading to add Nelson as a party; Adams also asked the court, under Rule 59(e), to amend the fee award. The District Court granted the motion in full, simultaneously making Nelson a party and subjecting him to judgment. The Court of Appeals affirmed. We hold that the District Court erred in amending the judgment immediately upon permitting amendment of the pleading. Due process, as reflected in Rule 15 as well as Rule 12, required that Nelson be given an opportunity to respond and contest his personal liability for the award after he was made a party and before the entry of judgment against him. I OCP and its successor corporation held two patents relating to the method of manufacturing a foamed padding used in athletic equipment. In 1994, OCP sued Adams for infringement. Adams maintained that the patents had been anticipated by prior art and were therefore invalid under 35 U.S. C. 102(b). The District Court ruled in Adams' favor and dismissed the infringement complaint. Adams then moved for attorney fees and costs. The District Court granted the motion on the ground that Nelson, who was at all relevant times president and sole shareholder of OCP, had deceitfully withheld the prior art from the United States Patent and Trademark Office. This behavior, the District Court concluded, constituted inequitable conduct chargeable to OCP. On January 20, 1998, the District Court awarded Adams costs and fees in the amount of $178,888.51 against OCP. Adams feared, however, that it would be unable to collect the award. This was an altogether understandable concern; it stemmed from a letter OCP's counsel had sent Adams warning that OCP would be liquidated if exposed to a judgment for fees more than nominal in amount. Adams therefore 464 moved to amend its pleading to add Nelson, personally, as a party from whom fees could be collected. In this postjudgment endeavor, Adams reasoned that Nelson was the flesh-and-blood party behind OCP, the person whose conduct in withholding prior art precipitated the fee award, and a person with funds sufficient to satisfy that award. The District Court granted the motion. Adams' motion, however, sought more than permission to amend the pleading. It sought simultaneously an amended judgment, subjecting Nelson to liability as soon as he was made a party. See Record, Doc. No. 126, p. 1 ("Defendants [i. e., Adams] hereby move the Court for an order granting Defendants leave to amend their third party complaint to name Donald E. Nelson (Nelson) as a third party defendant in his individual capacity, and amending the judgment in this action to include Nelson as an additional party against whom judgment is entered."). In presenting the motion, Adams offered no reason why the judgment should be altered immediately. See The motion did contend that an amendment to the judgment was "necessary to prevent manifest injustice," but it did not explain why Nelson, once joined as a party, should not be permitted to state his side of that argument. The District Court seems not to have paused over this question, for it allowed the pleading amendment and altered the judgment at a single stroke. Record, Doc. No. 131. The memorandum explaining the District Court's decision addressed only the propriety of adding Nelson as a party. It did not address the propriety of altering the judgment at the very same time. Record, Doc. No. 130, at 3-7. The Court of Appeals for the Federal Circuit affirmed the amended judgment against Nelson. Ohio Cellular Prods. It was "uncommon," the appeals court acknowledged, to add a party after the entry of judgment. The court concluded, 465 however, that Nelson had not been prejudiced by the postjudgment joinder. The Federal Circuit based that conclusion on Nelson's failure to show that "anything different or additional would have been done" to stave off the judgment had Nelson been a party, in his individual capacity, from the outset of the litigation. The panel, over a vigorous dissent by Judge Newman, was apparently satisfied that adding Nelson as a party and simultaneously amending the judgment to obligate him individually met due process requirements. See We granted certiorari, In his request for this Court's review, Nelson did not dispute the portion of the District Court's order that granted Adams leave to amend its pleading to add Nelson as a party against whom costs and fees were sought. Pet. for Cert. 11. What he does challenge, and what is now before us, is the portion of the District Court's order that immediately adjudged Nelson personally liable the moment he was made a party. II A The Federal Rules of Civil Procedure are designed to further the due process of law that the Constitution guarantees. Cf. Fed. Rule Civ. Proc. 1 (Rules "shall be construed and administered to secure the just, speedy, and inexpensive determination of every action."). Rule 15 sets out the requirements for amended and supplemental pleadings. On that score, the Court of Appeals observed that as long as no undue prejudice is shown, "due process requirements are met if the requirements of Rule 15 are met." n. 5. But in the instant case, the requirements of Rule 15 were not met. As Judge Newman recognized in her dissent below, due process does not countenance such swift passage from pleading to judgment in the pleader's favor. See 466 The propriety of allowing a pleading alteration depends not only on the state of affairs prior to amendment but also on what happens afterwards. Accordingly, Rule 15 both conveys the circumstances under which leave to amend shall be granted and directs how the litigation will move forward following an amendment. When a court grants leave to amend to add an adverse party after the time for responding to the original pleading has lapsed, the party so added is given "10 days after service of the amended pleading" to plead in response. Fed. Rule Civ. Proc. 15(a). This opportunity to respond, fundamental to due process, is the echo of the opportunity to respond to original pleadings secured by Rule 12. See Fed. Rule Civ. Proc. 12(a)(1). Thus, Rule 15 assumes an amended pleading will be filed and anticipates service of that pleading on the adverse party. Nelson was never served with an amended pleading. Indeed, no such pleading was ever actually composed and filed in court. Nor, after the amendment naming him as a party, was Nelson accorded 10 days to state his defenses against personal liability for costs and fees. Instead, judgment was entered against him the moment permission to amend the pleading was granted. Appeal after judgment, in the circumstances this case presents, did not provide an adequate opportunity to defend against the imposition of liability. Cf. American Surety Adams points to nothing in the record indicating that Nelson affirmatively relinquished his right to respond on the merits of the case belatedly stated against him in his individual capacity. Accordingly, the proceedings did not comply with Rule 15, and neither did they comport with due process. See, e. g., ). It is true that Nelson knew as soon as Adams moved to amend the pleading and alter the judgment that he might ultimately be subjected to personal liability. One could 467 ask, therefore, whether Nelson in fact had a fair chance, before alteration of the judgment, to respond and be heard. Rule 15 and the due process for which it provides, however, demand a more reliable and orderly course. First, as the Rule indicates, pleading in response to an amended complaint is a prerogative of parties, see Fed. Rule Civ. Proc. 15(a), and Nelson was not a party prior to the District Court's ruling on Adams' motion to amend. Second, as Rule 15 further prescribes, the clock on an added party's time to respond does not start running until the new pleading naming that party is served, see ib just as the clock on an original party's time to respond does not start running until the original pleading is served, see Fed. Rule Civ. Proc. 12(a)(1)(A). This is not to say that Rule 15 is itself a constitutional requirement. Beyond doubt, however, a prospective party cannot fairly be required to answer an amended pleading not yet permitted, framed, and served.[1] In support of its holding that Nelson was not prejudiced when added as a party and subjected to judgment, the Federal Circuit relied on its prior decision in See 1350, and n. 7. The reliance is puzzling, for the circumstances in Fromson were crucially different from those presented here. The plaintiff in Fromson prevailed on an infringement claim and subsequently moved to hold the owners of the judgment-proof defendant corporation individually liable. To that extent only, Fromson resembles the 468 instant case. Notably unlike Adams, however, the plaintiff in Fromson had moved before trial to add the individual owners as parties, because it suspected from the start that the defendant corporation might not be able to pay. The District Court denied that motion in reliance on the defendant corporation's false assurances that it was solvent. See 1304. Having been informed before trial that the plaintiffs sought to sue them in their individual capacities, and having acted deliberately to derail such a suit, the owners of the defendant corporation in Fromson could hardly assert that another's mistake or choice of whom to sue had compromised their ability to defend. Their problem, the Federal Circuit aptly observed in its Fromson opinion, was "a bed of their own making." Here, in contrast, Adams never sought to sue Nelson individually until after judgment was entered against OCP. Nor is there any indication that Adams initially sought relief solely against OCP because of some false assurance regarding OCP's solvency. To summarize, Nelson was never afforded a proper opportunity to respond to the claim against him. Instead, he was adjudged liable the very first moment his personal liability was legally at issue. Procedure of this style has been questioned even in systems, real and imaginary, less concerned than ours with the right to due process.[2] * B Adams strongly urges, however, that Nelson waived his objections to the swift process of the District Court. Adams first maintains that Nelson waived arguments based on personal jurisdiction and the absence of service of process by failing to raise them promptly after being added as a party. Brief for Respondents 32-41. Nelson's winning argument, however, is based neither on personal jurisdiction nor on service of process. It rests on his right to have time and opportunity to respond to the claim once Adams gained leave to sue Nelson in his individual capacity, and thereby to reach beyond OCP's corporate till into Nelson's personal pocket. Waiver of arguments based on personal jurisdiction and service of process is therefore beside the point.[3] In a similar vein, and this time coming closer to the dispositive issue, Adams submits that the Federal Circuit "did not address the `due process' issues now sought to be presented, because these issues were never raised by Petitioner" before that court. It is indeed the general rule that issues must be raised in lower courts in order to be preserved as potential grounds of decision in higher courts. But this principle does not demand the incantation of particular words; rather, it requires that the lower court be fairly put on notice as to the substance of the issue. See, e. g., Beech Aircraft And the general rule 470 does not prevent us from declaring what due process requires in this case, for that matter was fairly before the Court of Appeals. In response to questioning from the appellate bench, Nelson's counsel explained that the core of his client's argument was the fundamental unfairness of imposing judgment without going through the process of litigation our rules of civil procedure prescribe.[4] Both the majority and the dissent in the Federal Circuit understood that an issue before them concerned the process due after Adams' postjudgment motion. See n. 5 ; Our resolution of the case as a matter of due process therefore rests on a ground considered and passed upon by the court below. Beneath Adams' technical and ultimately unavailing arguments about waiver, its essential position in the litigation is reflected in the Federal Circuit's decision: There was sufficient identity between Nelson and OCP to bind Nelson, without further ado, to a judgment already entered against OCP. Nelson was president and sole shareholder of OCP. See It was Nelson who withheld prior art from the Patent Office. See He had actual notice that Adams was seeking to collect a fee award from OCP, because he was the "effective controller" of the litigation for OCP and personally participated as a witness at the hearing on whether OCP had engaged in inequitable conduct. See The Federal Circuit did not conclude that these factors would have justified imposing liability on Nelson by piercing 471 OCP's corporate veil, see n. 6, and Adams, for its part, has disavowed reliance on a veil-piercing theory, see Record, Doc. No. 129, at 3 (stating, before the District Court, that "Adams does not request that the Court `disregard the corporate form' "); Tape of Oral Arg. in No. 98-1448 (expressly stating that this case does not concern piercing the corporate veil). One-person corporations are authorized by law and should not lightly be labeled sham. See, e. g., ; Kirno Hill Indeed, where patents are concerned, the one-person corporation may be an altogether appropriate means to permit innovation without exposing inventors to possibly ruinous consequences. The legitimacy of OCP as a corporation, in short, is not at issue in this case. Instead, the Federal Circuit reasoned that nothing much turned on whether the party opposing Adams' claim for costs and fees was OCP or Nelson. "[N]o basis has been advanced," the panel majority concluded, "to believe anything different or additional would have been done to defend against the allegation of inequitable conduct had Nelson individually already been added as a party or had he been a party from the outset." 175 F.3d, We neither dispute nor endorse the substance of this speculation. We say instead that judicial predictions about the outcome of hypothesized litigation cannot substitute for the actual opportunity to defend that due process affords every party against whom a claim is stated. As Judge Newman wrote in dissent: "The law, at its most fundamental, does not render judgment simply because a person might have been found liable had he been charged." 472 Our decision surely does not insulate Nelson from liability. As counsel twice represented at oral argument, see Tr. of Oral Arg. 9, 19-20, Nelson seeks only the right to contest on the merits his personal liability for fees originally sought and awarded solely against OCP. That right, we hold, is just what due process affords him.[5] * * For the reasons stated, 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.	1,960
Justice Kennedy	majority	false	Arizona v. United States	2012-06-25	null	https://www.courtlistener.com/opinion/802971/arizona-v-united-states/	https://www.courtlistener.com/api/rest/v3/clusters/802971/	2,012	null	null	null	null	To address pressing issues related to the large number of aliens within its borders who do not have a lawful right to be in this country, the State of Arizona in 2010 enacted a statute called the Support Our Law Enforcement and Safe Neighborhoods Act. The law is often referred to as S. B. 1070, the version introduced in the state senate. See also H. 2162 (2010) (amending S. 1070). Its stated pur pose is to “discourage and deter the unlawful entry and presence of aliens and economic activity by persons unlaw fully present in the United States.” Note following Ariz. Rev. Stat. Ann. §11–1051 (West 2012). The law’s provi sions establish an official state policy of “attrition through enforcement.” Ibid. The question before the Court is whether federal law preempts and renders invalid four separate provisions of the state law. I The United States filed this suit against Arizona, seek ing to enjoin S. B. 1070 as preempted. Four provisions of the law are at issue here. Two create new state offenses. Section 3 makes failure to comply with federal alien registration requirements a state misdemeanor. Ariz. 2 ARIZONA v. UNITED STATES Opinion of the Court Rev. Stat. Ann. §13–1509 (West Supp. 2011). Section 5, in relevant part, makes it a misdemeanor for an unauthor ized alien to seek or engage in work in the State; this provision is referred to as §5(C). See §13–2928(C). Two other provisions give specific arrest authority and inves- tigative duties with respect to certain aliens to state and local law enforcement officers. Section 6 authorizes offic ers to arrest without a warrant a person “the officer has probable cause to believe . . . has committed any public offense that makes the person removable from the United States.” §13–3883(A)(5). Section 2(B) provides that offic ers who conduct a stop, detention, or arrest must in some circumstances make efforts to verify the person’s immi gration status with the Federal Government. See §11– 1051(B) (West 2012). The United States District Court for the District of Arizona issued a preliminary injunction preventing the four provisions at issue from taking effect. 703 F. Supp. 2d 980, 1008 (2010). The Court of Appeals for the Ninth Circuit affirmed. 641 F.3d 339, 366 (2011). It agreed that the United States had established a likelihood of success on its preemption claims. The Court of Appeals was unan imous in its conclusion that §§3 and 5(C) were likely preempted. Judge Bea dissented from the decision to uphold the preliminary injunction against §§2(B) and 6. This Court granted certiorari to resolve important ques tions concerning the interaction of state and federal power with respect to the law of immigration and alien status. 565 U. S. ___ (2011). II A The Government of the United States has broad, un doubted power over the subject of immigration and the status of aliens. See Toll v. Moreno, 458 U.S. 1, 10 (1982); see generally S. Legomsky & C. Rodríguez, Immigration Cite as: 567 U. S. ____ (2012) 3 Opinion of the Court and Refugee Law and Policy 115–132 (5th ed. 2009). This authority rests, in part, on the National Government’s constitutional power to “establish an uniform Rule of Nat- uralization,” U. S. Const., Art. I, §8, cl. 4, and its inher- ent power as sovereign to control and conduct relations with foreign nations, see Toll, supra, at 10 (citing United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 318 (1936)). The federal power to determine immigration policy is well settled. Immigration policy can affect trade, invest ment, tourism, and diplomatic relations for the entire Nation, as well as the perceptions and expectations of aliens in this country who seek the full protection of its laws. See, e.g., Brief for Argentina et al. as Amici Curiae; see also Harisiades v. Shaughnessy, 342 U.S. 580, 588–589 (1952). Perceived mistreatment of aliens in the United States may lead to harmful reciprocal treatment of American citizens abroad. See Brief for Madeleine K. Albright et al. as Amici Curiae 24–30. It is fundamental that foreign countries concerned about the status, safety, and security of their nationals in the United States must be able to confer and communicate on this subject with one national sovereign, not the 50 sepa rate States. See Chy Lung v. Freeman, 92 U.S. 275, 279– 280 (1876); see also The Federalist No. 3, p. 39 (C. Rossiter ed. 2003) (J. Jay) (observing that federal power would be necessary in part because “bordering States . . . under the impulse of sudden irritation, and a quick sense of appar ent interest or injury” might take action that would un dermine foreign relations). This Court has reaffirmed that “[o]ne of the most important and delicate of all interna tional relationships . . . has to do with the protection of the just rights of a country’s own nationals when those na tionals are in another country.” Hines v. Davidowitz, 312 U.S. 52, 64 (1941). Federal governance of immigration and alien status is 4 ARIZONA v. UNITED STATES Opinion of the Court extensive and complex. Congress has specified catego ries of aliens who may not be admitted to the United States. See 8 U.S. C. §1182. Unlawful entry and unlawful reentry into the country are federal offenses. §§1325, 1326. Once here, aliens are required to register with the Federal Government and to carry proof of status on their person. See §§1301–1306. Failure to do so is a federal misdemeanor. §§1304(e), 1306(a). Federal law also au thorizes States to deny noncitizens a range of public bene fits, §1622; and it imposes sanctions on employers who hire unauthorized workers, §1324a. Congress has specified which aliens may be removed from the United States and the procedures for doing so. Aliens may be removed if they were inadmissible at the time of entry, have been convicted of certain crimes, or meet other criteria set by federal law. See §1227. Re moval is a civil, not criminal, matter. A principal feature of the removal system is the broad discretion exercised by immigration officials. See Brief for Former Commission ers of the United States Immigration and Naturalization Service as Amici Curiae 8–13 (hereinafter Brief for For mer INS Commissioners). Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all. If removal proceedings commence, aliens may seek asylum and other discretionary relief allowing them to remain in the country or at least to leave without formal removal. See §1229a(c)(4); see also, e.g., §§1158 (asylum), 1229b (cancellation of removal), 1229c (volun tary departure). Discretion in the enforcement of immigration law em braces immediate human concerns. Unauthorized work ers trying to support their families, for example, likely pose less danger than alien smugglers or aliens who com mit a serious crime. The equities of an individual case may turn on many factors, including whether the alien has children born in the United States, long ties to the Cite as: 567 U. S. ____ (2012) 5 Opinion of the Court community, or a record of distinguished military service. Some discretionary decisions involve policy choices that bear on this Nation’s international relations. Returning an alien to his own country may be deemed inappropriate even where he has committed a removable offense or fails to meet the criteria for admission. The foreign state may be mired in civil war, complicit in political persecution, or enduring conditions that create a real risk that the alien or his family will be harmed upon return. The dynamic nature of relations with other countries requires the Exec utive Branch to ensure that enforcement policies are con sistent with this Nation’s foreign policy with respect to these and other realities. Agencies in the Department of Homeland Security play a major role in enforcing the country’s immigration laws. United States Customs and Border Protection (CBP) is re- sponsible for determining the admissibility of aliens and securing the country’s borders. See Dept. of Homeland Security, Office of Immigration Statistics, Immigration Enforcement Actions: 2010, p. 1 (2011). In 2010, CBP’s Border Patrol apprehended almost half a million people. Id., at 3. Immigration and Customs Enforcement (ICE), a second agency, “conducts criminal investigations involving the enforcement of immigration-related statutes.” Id., at 2. ICE also operates the Law Enforcement Support Cen ter. LESC, as the Center is known, provides immigra- tion status information to federal, state, and local officials around the clock. See App. 91. ICE officers are respon sible “for the identification, apprehension, and removal of illegal aliens from the United States.” Immigration En forcement Actions, supra, at 2. Hundreds of thousands of aliens are removed by the Federal Government every year. See id., at 4 (reporting there were 387,242 removals, and 476,405 returns without a removal order, in 2010). 6 ARIZONA v. UNITED STATES Opinion of the Court B The pervasiveness of federal regulation does not di minish the importance of immigration policy to the States. Arizona bears many of the consequences of unlawful im migration. Hundreds of thousands of deportable aliens are apprehended in Arizona each year. Dept. of Homeland Security, Office of Immigration Statistics, 2010 Yearbook of Immigration Statistics 93 (2011) (Table 35). Unauthor ized aliens who remain in the State comprise, by one es- timate, almost six percent of the population. See Passel & Cohn, Pew Hispanic Center, U. S. Unauthorized Im- migration Flows Are Down Sharply Since Mid-Decade 3 (2010). And in the State’s most populous county, these aliens are reported to be responsible for a disproportionate share of serious crime. See, e.g., Camarota & Vaughan, Center for Immigration Studies, Immigration and Crime: Assessing a Conflicted Situation 16 (2009) (Table 3) (esti mating that unauthorized aliens comprise 8.9% of the population and are responsible for 21.8% of the felonies in Maricopa County, which includes Phoenix). Statistics alone do not capture the full extent of Arizo na’s concerns. Accounts in the record suggest there is an “epidemic of crime, safety risks, serious property damage, and environmental problems” associated with the influx of illegal migration across private land near the Mexican border. Brief for Petitioners 6. Phoenix is a major city of the United States, yet signs along an interstate highway 30 miles to the south warn the public to stay away. One reads, “DANGER—PUBLIC WARNING—TRAVEL NOT RECOMMENDED / Active Drug and Human Smuggling Area / Visitors May Encounter Armed Criminals and Smuggling Vehicles Traveling at High Rates of Speed.” App. 170; see also Brief for Petitioners 5–6. The problems posed to the State by illegal immigration must not be underestimated. These concerns are the background for the formal legal Cite as: 567 U. S. ____ (2012) 7 Opinion of the Court analysis that follows. The issue is whether, under pre emption principles, federal law permits Arizona to imple ment the state-law provisions in dispute. III Federalism, central to the constitutional design, adopts the principle that both the National and State Govern ments have elements of sovereignty the other is bound to respect. See Gregory v. Ashcroft, 501 U.S. 452, 457 (1991); U. S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 838 (1995) (KENNEDY, J., concurring). From the existence of two sovereigns follows the possibility that laws can be in conflict or at cross-purposes. The Supremacy Clause provides a clear rule that federal law “shall be the su preme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Art. VI, cl. 2. Under this principle, Congress has the power to preempt state law. See Crosby v. National For- eign Trade Council, 530 U.S. 363, 372 (2000); Gibbons v. Ogden, 9 Wheat. 1, 210–211 (1824). There is no doubt that Congress may withdraw specified powers from the States by enacting a statute containing an express preemption provision. See, e.g., Chamber of Commerce of United States of America v. Whiting, 563 U.S. ___, ___ (2011) (slip op., at 4). State law must also give way to federal law in at least two other circumstances. First, the States are precluded from regulating conduct in a field that Congress, acting within its proper authority, has determined must be regu lated by its exclusive governance. See Gade v. National Solid Wastes Management Assn., 505 U.S. 88, 115 (1992). The intent to displace state law altogether can be inferred from a framework of regulation “so pervasive . . . that Congress left no room for the States to supplement it” or where there is a “federal interest . . . so dominant that the 8 ARIZONA v. UNITED STATES Opinion of the Court federal system will be assumed to preclude enforcement of state laws on the same subject.” Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947); see English v. General Elec. Co., 496 U.S. 72, 79 (1990). Second, state laws are preempted when they conflict with federal law. Crosby, supra, at 372. This includes cases where “compliance with both federal and state regulations is a physical impossibility,” Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142–143 (1963), and those instances where the challenged state law “stands as an obstacle to the accomplishment and execu tion of the full purposes and objectives of Congress,” Hines, 312 U. S., at 67; see also Crosby, supra, at 373 (“What is a sufficient obstacle is a matter of judgment, to be informed by examining the federal statute as a whole and identifying its purpose and intended effects”). In preemption analysis, courts should assume that “the historic police powers of the States” are not superseded “unless that was the clear and manifest purpose of Con gress.” Rice, supra, at 230; see Wyeth v. Levine, 555 U.S. 555, 565 (2009). The four challenged provisions of the state law each must be examined under these preemption principles. IV A Section 3 Section 3 of S. B. 1070 creates a new state misde- meanor. It forbids the “willful failure to complete or carry an alien registration document . . . in violation of 8 United States Code section 1304(e) or 1306(a).” Ariz. Rev. Stat. Ann. §11–1509(A) (West Supp. 2011). In effect, §3 adds a state-law penalty for conduct proscribed by federal law. The United States contends that this state enforcement mechanism intrudes on the field of alien registration, a field in which Congress has left no room for States to Cite as: 567 U. S. ____ (2012) 9 Opinion of the Court regulate. See Brief for United States 27, 31. The Court discussed federal alien-registration require ments in Hines v. Davidowitz, 312 U.S. 52. In 1940, as international conflict spread, Congress added to federal immigration law a “complete system for alien registra tion.” Id., at 70. The new federal law struck a careful balance. It punished an alien’s willful failure to register but did not require aliens to carry identification cards. There were also limits on the sharing of registration rec ords and fingerprints. The Court found that Congress intended the federal plan for registration to be a “single integrated and all-embracing system.” Id., at 74. Because this “complete scheme . . . for the registration of aliens” touched on foreign relations, it did not allow the States to “curtail or complement” federal law or to “enforce addi tional or auxiliary regulations.” Id., at 66–67. As a con sequence, the Court ruled that Pennsylvania could not enforce its own alien-registration program. See id., at 59, 74. The present regime of federal regulation is not identi cal to the statutory framework considered in Hines, but it remains comprehensive. Federal law now includes a requirement that aliens carry proof of registration. 8 U.S. C. §1304(e). Other aspects, however, have stayed the same. Aliens who remain in the country for more than 30 days must apply for registration and be fingerprinted. Compare §1302(a) with id., §452(a) (1940 ed.). Detailed information is required, and any change of address has to be reported to the Federal Government. Compare §§1304(a), 1305(a) (2006 ed.), with id., §§455(a), 456 (1940 ed.). The statute continues to provide penalties for the willful failure to register. Compare §1306(a) (2006 ed.), with id., §457 (1940 ed.). The framework enacted by Congress leads to the conclu sion here, as it did in Hines, that the Federal Government has occupied the field of alien registration. See American Ins. Assn. v. Garamendi, 539 U.S. 396, 419, n. 11 (2003) 10 ARIZONA v. UNITED STATES Opinion of the Court (characterizing Hines as a field preemption case); Pennsyl- vania v. Nelson, 350 U.S. 497, 504 (1956) (same); see also Dinh, Reassessing the Law of Preemption, 88 Geo. L. J. 2085, 2098–2099, 2107 (2000) (same). The federal statu tory directives provide a full set of standards governing alien registration, including the punishment for noncom pliance. It was designed as a “ ‘harmonious whole.’ ” Hines, supra, at 72. Where Congress occupies an entire field, as it has in the field of alien registration, even com plementary state regulation is impermissible. Field pre emption reflects a congressional decision to foreclose any state regulation in the area, even if it is parallel to fed- eral standards. See Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 249 (1984). Federal law makes a single sovereign responsible for maintaining a comprehensive and unified system to keep track of aliens within the Nation’s borders. If §3 of the Arizona statute were valid, every State could give itself independent authority to prosecute federal registration violations, “diminish[ing] the [Federal Government]’s control over enforcement” and “detract[ing] from the ‘integrated scheme of regulation’ created by Congress.” Wisconsin Dept. of Industry v. Gould Inc., 475 U.S. 282, 288–289 (1986). Even if a State may make violation of federal law a crime in some instances, it cannot do so in a field (like the field of alien registration) that has been occupied by federal law. See California v. Zook, 336 U.S. 725, 730– 731, 733 (1949); see also In re Loney, 134 U.S. 372, 375– 376 (1890) (States may not impose their own punishment for perjury in federal courts). Arizona contends that §3 can survive preemption be cause the provision has the same aim as federal law and adopts its substantive standards. This argument not only ignores the basic premise of field preemption—that States may not enter, in any respect, an area the Federal Gov ernment has reserved for itself—but also is unpersuasive Cite as: 567 U. S. ____ (2012) 11 Opinion of the Court on its own terms. Permitting the State to impose its own penalties for the federal offenses here would conflict with the careful framework Congress adopted. Cf. Buckman Co. v. Plaintiffs’ Legal Comm., 531 U.S. 341, 347–348 (2001) (States may not impose their own punishment for fraud on the Food and Drug Administration); Wisconsin Dept., supra, at 288 (States may not impose their own punishment for repeat violations of the National Labor Relations Act). Were §3 to come into force, the State would have the power to bring criminal charges against individuals for violating a federal law even in circum stances where federal officials in charge of the comprehen sive scheme determine that prosecution would frustrate federal policies. There is a further intrusion upon the federal scheme. Even where federal authorities believe prosecution is ap- propriate, there is an inconsistency between §3 and fed- eral law with respect to penalties. Under federal law, the failure to carry registration papers is a misdemeanor that may be punished by a fine, imprisonment, or a term of probation. See 8 U.S. C. §1304(e) (2006 ed.); 18 U.S. C. §3561. State law, by contrast, rules out probation as a possible sentence (and also eliminates the possibility of a pardon). See Ariz. Rev. Stat. Ann. §13–1509(D) (West Supp. 2011). This state framework of sanctions creates a conflict with the plan Congress put in place. See Wiscon- sin Dept., supra, at 286 (“[C]onflict is imminent whenever two separate remedies are brought to bear on the same activity” (internal quotation marks omitted)). These specific conflicts between state and federal law simply underscore the reason for field preemption. As it did in Hines, the Court now concludes that, with respect to the subject of alien registration, Congress intended to preclude States from “complement[ing] the federal law, or enforc[ing] additional or auxiliary regulations.” 312 U. S., at 66–67. Section 3 is preempted by federal law. 12 ARIZONA v. UNITED STATES Opinion of the Court B Section 5(C) Unlike §3, which replicates federal statutory require ments, §5(C) enacts a state criminal prohibition where no federal counterpart exists. The provision makes it a state misdemeanor for “an unauthorized alien to knowingly ap- ply for work, solicit work in a public place or perform work as an employee or independent contractor” in Ari zona. Ariz. Rev. Stat. Ann. §13–2928(C) (West Supp. 2011). Violations can be punished by a $2,500 fine and incarcera tion for up to six months. See §13–2928(F); see also §§13–707(A)(1) (West 2010); 13–802(A); 13–902(A)(5). The United States contends that the provision upsets the bal- ance struck by the Immigration Reform and Control Act of 1986 (IRCA) and must be preempted as an obstacle to the federal plan of regulation and control. When there was no comprehensive federal program regulating the employment of unauthorized aliens, this Court found that a State had authority to pass its own laws on the subject. In 1971, for example, California passed a law imposing civil penalties on the employment of aliens who were “not entitled to lawful residence in the United States if such employment would have an adverse effect on lawful resident workers.” 1971 Cal. Stats. ch. 1442, §1(a). The law was upheld against a preemption challenge in De Canas v. Bica, 424 U.S. 351 (1976). De Canas recognized that “States possess broad authority under their police powers to regulate the employment relationship to protect workers within the State.” Id., at 356. At that point, however, the Federal Government had expressed no more than “a peripheral concern with [the] employment of illegal entrants.” Id., at 360; see Whiting, 563 U. S., at ___ (slip op., at 3). Current federal law is substantially different from the regime that prevailed when De Canas was decided. Con gress enacted IRCA as a comprehensive framework for Cite as: 567 U. S. ____ (2012) 13 Opinion of the Court “combating the employment of illegal aliens.” Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 147 (2002). The law makes it illegal for employers to know ingly hire, recruit, refer, or continue to employ unauthorized workers. See 8 U.S. C. §§1324a(a)(1)(A), (a)(2). It also requires every employer to verify the employment authori zation status of prospective employees. See §§1324a(a) (1)(B), (b); 8 CFR §274a.2(b) (2012). These requirements are enforced through criminal penalties and an escalat ing series of civil penalties tied to the number of times an employer has violated the provisions. See 8 U.S. C. §§1324a(e)(4), (f); 8 CFR §274a.10. This comprehensive framework does not impose federal criminal sanctions on the employee side (i.e., penalties on aliens who seek or engage in unauthorized work). Under federal law some civil penalties are imposed instead. With certain exceptions, aliens who accept unlawful employ ment are not eligible to have their status adjusted to that of a lawful permanent resident. See 8 U.S. C. §§1255(c)(2), (c)(8). Aliens also may be removed from the country for having engaged in unauthorized work. See §1227(a)(1)(C)(i); 8 CFR §214.1(e). In addition to specify ing these civil consequences, federal law makes it a crime for unauthorized workers to obtain employment through fraudulent means. See 18 U.S. C. §1546(b). Congress has made clear, however, that any information employees submit to indicate their work status “may not be used” for purposes other than prosecution under specified federal criminal statutes for fraud, perjury, and related conduct. See 8 U.S. C. §§1324a(b)(5), (d)(2)(F)–(G). The legislative background of IRCA underscores the fact that Congress made a deliberate choice not to impose crim inal penalties on aliens who seek, or engage in, unauthor ized employment. A commission established by Congress to study immigration policy and to make recommen dations concluded these penalties would be “unnecessary 14 ARIZONA v. UNITED STATES Opinion of the Court and unworkable.” U. S. Immigration Policy and the Na tional Interest: The Final Report and Recommendations of the Select Commission on Immigration and Refugee Policy with Supplemental Views by Commissioners 65–66 (1981); see Pub. L. 95–412, §4, 92 Stat. 907. Proposals to make unauthorized work a criminal offense were debated and discussed during the long process of drafting IRCA. See Brief for Service Employees International Union et al. as Amici Curiae 9–12. But Congress rejected them. See, e.g., 119 Cong. Rec. 14184 (1973) (statement of Rep. Dennis). In the end, IRCA’s framework reflects a considered judg ment that making criminals out of aliens engaged in unauthorized work—aliens who already face the possibil ity of employer exploitation because of their removable status—would be inconsistent with federal policy and ob- jectives. See, e.g., Hearings before the Subcommittee No. 1 of the House Committee on the Judiciary, 92d Cong., 1st Sess., pt. 3, pp. 919–920 (1971) (statement of Rep. Rodino, the eventual sponsor of IRCA in the House of Representatives). IRCA’s express preemption provision, which in most instances bars States from imposing penalties on employ ers of unauthorized aliens, is silent about whether addi tional penalties may be imposed against the employees themselves. See 8 U.S. C. §1324a(h)(2); Whiting, supra, at ___–___ (slip op., at 1–2). But the existence of an “ex press pre-emption provisio[n] does not bar the ordinary working of conflict pre-emption principles” or impose a “special burden” that would make it more difficult to establish the preemption of laws falling outside the clause. Geier v. American Honda Motor Co., 529 U.S. 861, 869– 872 (2000); see Sprietsma v. Mercury Marine, 537 U.S. 51, 65 (2002). The ordinary principles of preemption include the well settled proposition that a state law is preempted where it “stands as an obstacle to the accomplishment and exe Cite as: 567 U. S. ____ (2012) 15 Opinion of the Court cution of the full purposes and objectives of Congress.” Hines, 312 U. S., at 67. Under §5(C) of S. B. 1070, Arizona law would interfere with the careful balance struck by Congress with respect to unauthorized employment of aliens. Although §5(C) attempts to achieve one of the same goals as federal law—the deterrence of unlawful employment—it involves a conflict in the method of en forcement. The Court has recognized that a “[c]onflict in technique can be fully as disruptive to the system Con gress enacted as conflict in overt policy.” Motor Coach Employees v. Lockridge, 403 U.S. 274, 287 (1971). The correct instruction to draw from the text, structure, and history of IRCA is that Congress decided it would be inap propriate to impose criminal penalties on aliens who seek or engage in unauthorized employment. It follows that a state law to the contrary is an obstacle to the regulatory system Congress chose. See Puerto Rico Dept. of Con- sumer Affairs v. ISLA Petroleum Corp., 485 U.S. 495, 503 (1988) (“Where a comprehensive federal scheme intention ally leaves a portion of the regulated field without con trols, then the pre-emptive inference can be drawn—not from federal inaction alone, but from inaction joined with action”). Section 5(C) is preempted by federal law. C Section 6 Section 6 of S. B. 1070 provides that a state officer, “without a warrant, may arrest a person if the officer has probable cause to believe . . . [the person] has committed any public offense that makes [him] removable from the United States.” Ariz. Rev. Stat. Ann. §13–3883(A)(5) (West Supp. 2011). The United States argues that arrests authorized by this statute would be an obstacle to the removal system Congress created. As a general rule, it is not a crime for a removable alien to remain present in the United States. See INS v. Lopez- 16 ARIZONA v. UNITED STATES Opinion of the Court Mendoza, 468 U.S. 1032, 1038 (1984). If the police stop someone based on nothing more than possible removabil ity, the usual predicate for an arrest is absent. When an alien is suspected of being removable, a federal official issues an administrative document called a Notice to Ap pear. See 8 U.S. C. §1229(a); 8 CFR §239.1(a) (2012). The form does not authorize an arrest. Instead, it gives the alien information about the proceedings, including the time and date of the removal hearing. See 8 U.S. C. §1229(a)(1). If an alien fails to appear, an in absentia order may direct removal. §1229a(5)(A). The federal statutory structure instructs when it is ap propriate to arrest an alien during the removal process. For example, the Attorney General can exercise discretion to issue a warrant for an alien’s arrest and detention “pending a decision on whether the alien is to be removed from the United States.” 8 U.S. C. §1226(a); see Memo randum from John Morton, Director, ICE, to All Field Office Directors et al., Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Prior ities of the Agency for the Apprehension, Detention, and Removal of Aliens (June 17, 2011) (hereinafter 2011 ICE Memorandum) (describing factors informing this and re lated decisions). And if an alien is ordered removed after a hearing, the Attorney General will issue a warrant. See 8 CFR §241.2(a)(1). In both instances, the warrants are executed by federal officers who have received training in the enforcement of immigration law. See §§241.2(b), 287.5(e)(3). If no federal warrant has been issued, those officers have more limited authority. See 8 U.S. C. §1357(a). They may arrest an alien for being “in the United States in violation of any [immigration] law or regula- tion,” for example, but only where the alien “is likely to escape before a warrant can be obtained.” §1357(a)(2). Section 6 attempts to provide state officers even greater authority to arrest aliens on the basis of possible remova Cite as: 567 U. S. ____ (2012) 17 Opinion of the Court bility than Congress has given to trained federal immi- gration officers. Under state law, officers who believe an alien is removable by reason of some “public offense” would have the power to conduct an arrest on that basis regardless of whether a federal warrant has issued or the alien is likely to escape. This state authority could be exercised without any input from the Federal Government about whether an arrest is warranted in a particular case. This would allow the State to achieve its own immigra tion policy. The result could be unnecessary harassment of some aliens (for instance, a veteran, college student, or someone assisting with a criminal investigation) whom federal officials determine should not be removed. This is not the system Congress created. Federal law specifies limited circumstances in which state officers may perform the functions of an immigration officer. A princi pal example is when the Attorney General has granted that authority to specific officers in a formal agreement with a state or local government. See §1357(g)(1); see also §1103(a)(10) (authority may be extended in the event of an “imminent mass influx of aliens off the coast of the United States”); §1252c (authority to arrest in specific circum stance after consultation with the Federal Government); §1324(c) (authority to arrest for bringing in and harboring certain aliens). Officers covered by these agreements are subject to the Attorney General’s direction and super vision. §1357(g)(3). There are significant complexities involved in enforcing federal immigration law, including the determination whether a person is removable. See Padilla v. Kentucky, 559 U.S. ___, ___–___ (2010) (ALITO, J., concurring in judgment) (slip op., at 4–7). As a result, the agreements reached with the Attorney General must contain written certification that officers have received adequate training to carry out the duties of an immigra tion officer. See §1357(g)(2); cf. 8 CFR §§287.5(c) (ar- rest power contingent on training), 287.1(g) (defining the 18 ARIZONA v. UNITED STATES Opinion of the Court training). By authorizing state officers to decide whether an alien should be detained for being removable, §6 violates the principle that the removal process is entrusted to the discretion of the Federal Government. See, e.g., Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 483–484 (1999); see also Brief for Former INS Commis sioners 8–13. A decision on removability requires a de termination whether it is appropriate to allow a foreign national to continue living in the United States. Decisions of this nature touch on foreign relations and must be made with one voice. See Jama v. Immigration and Customs Enforcement, 543 U.S. 335, 348 (2005) (“Removal deci sions, including the selection of a removed alien’s destina tion, may implicate [the Nation’s] relations with foreign powers and require consideration of changing political and economic circumstances” (internal quotation marks omit ted)); see also Galvan v. Press, 347 U.S. 522, 531 (1954) (“Policies pertaining to the entry of aliens and their right to remain here are . . . entrusted exclusively to Congress . . .”); Truax v. Raich, 239 U.S. 33, 42 (1915) (“The author ity to control immigration—to admit or exclude aliens—is vested solely in the Federal Government”). In defense of §6, Arizona notes a federal statute permit ting state officers to “cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States.” 8 U.S. C. §1357(g)(10)(B). There may be some ambiguity as to what constitutes cooperation under the federal law; but no coherent understanding of the term would incorporate the unilateral decision of state officers to arrest an alien for being removable absent any request, approval, or other instruction from the Federal Government. The Depart ment of Homeland Security gives examples of what would constitute cooperation under federal law. These include situations where States participate in a joint task force Cite as: 567 U. S. ____ (2012) 19 Opinion of the Court with federal officers, provide operational support in exe cuting a warrant, or allow federal immigration officials to gain access to detainees held in state facilities. See Dept. of Homeland Security, Guidance on State and Local Governments’ Assistance in Immigration Enforcement and Related Matters 13–14 (2011), online at http:// www.dhs.gov/files/resources/immigration.shtm (all Inter net materials as visited June 21, 2012, and available in Clerk of Court’s case file). State officials can also assist the Federal Government by responding to requests for information about when an alien will be released from their custody. See §1357(d). But the unilateral state action to detain authorized by §6 goes far beyond these measures, defeating any need for real cooperation. Congress has put in place a system in which state offic ers may not make warrantless arrests of aliens based on possible removability except in specific, limited circum stances. By nonetheless authorizing state and local offi- cers to engage in these enforcement activities as a general matter, §6 creates an obstacle to the full purposes and objectives of Congress. See Hines, 312 U. S., at 67. Sec tion 6 is preempted by federal law. D Section 2(B) Section 2(B) of S. B. 1070 requires state officers to make a “reasonable attempt . . . to determine the immigration status” of any person they stop, detain, or arrest on some other legitimate basis if “reasonable suspicion exists that the person is an alien and is unlawfully present in the United States.” Ariz. Rev. Stat. Ann. §11–1051(B) (West 2012). The law also provides that “[a]ny person who is arrested shall have the person’s immigration status de termined before the person is released.” Ibid. The accepted way to perform these status checks is to contact ICE, which maintains a database of immigration records. 20 ARIZONA v. UNITED STATES Opinion of the Court Three limits are built into the state provision. First, a detainee is presumed not to be an alien unlawfully present in the United States if he or she provides a valid Arizona driver’s license or similar identification. Second, officers “may not consider race, color or national origin . . . except to the extent permitted by the United States [and] Ari zona Constitution[s].” Ibid. Third, the provisions must be “implemented in a manner consistent with federal law regulating immigration, protecting the civil rights of all persons and respecting the privileges and immunities of United States citizens.” §11–1051(L) (West 2012). The United States and its amici contend that, even with these limits, the State’s verification requirements pose an obstacle to the framework Congress put in place. The first concern is the mandatory nature of the status checks. The second is the possibility of prolonged detention while the checks are being performed. 1 Consultation between federal and state officials is an important feature of the immigration system. Congress has made clear that no formal agreement or special train ing needs to be in place for state officers to “communicate with the [Federal Government] regarding the immigration status of any individual, including reporting knowledge that a particular alien is not lawfully present in the United States.” 8 U.S. C. §1357(g)(10)(A). And Congress has obligated ICE to respond to any request made by state officials for verification of a person’s citizenship or im- migration status. See §1373(c); see also §1226(d)(1)(A) (requiring a system for determining whether individuals arrested for aggravated felonies are aliens). ICE’s Law Enforcement Support Center operates “24 hours a day, seven days a week, 365 days a year” and provides, among other things, “immigration status, identity information and real-time assistance to local, state and federal law Cite as: 567 U. S. ____ (2012) 21 Opinion of the Court enforcement agencies.” ICE, Fact Sheet: Law Enforce ment Support Center (May 29, 2012), online at http:// www.ice.gov/news/library/factsheets/lesc.htm. LESC re sponded to more than one million requests for information in 2009 alone. App. 93. The United States argues that making status verifica tion mandatory interferes with the federal immigration scheme. It is true that §2(B) does not allow state officers to consider federal enforcement priorities in deciding whether to contact ICE about someone they have de tained. See Brief for United States 47–50. In other words, the officers must make an inquiry even in cases where it seems unlikely that the Attorney General would have the alien removed. This might be the case, for example, when an alien is an elderly veteran with significant and longstanding ties to the community. See 2011 ICE Memo randum 4–5 (mentioning these factors as relevant). Congress has done nothing to suggest it is inappropriate to communicate with ICE in these situations, however. Indeed, it has encouraged the sharing of information about possible immigration violations. See 8 U.S. C. §1357(g) (10)(A). A federal statute regulating the public benefits provided to qualified aliens in fact instructs that “no State or local government entity may be prohibited, or in any way restricted, from sending to or receiving from [ICE] information regarding the immigration status, lawful or unlawful, of an alien in the United States.” §1644. The federal scheme thus leaves room for a policy requiring state officials to contact ICE as a routine matter. Cf. Whiting, 563 U. S., at ___–___ (slip op., at 23–24) (reject ing argument that federal law preempted Arizona’s re quirement that employers determine whether employees were eligible to work through the federal E-Verify system where the Federal Government had encouraged its use). 22 ARIZONA v. UNITED STATES Opinion of the Court 2 Some who support the challenge to §2(B) argue that, in practice, state officers will be required to delay the release of some detainees for no reason other than to verify their immigration status. See, e.g., Brief for Former Arizona Attorney General Terry Goddard et al. as Amici Curiae 37, n. 49. Detaining individuals solely to verify their immi gration status would raise constitutional concerns. See, e.g., Arizona v. Johnson, 555 U.S. 323, 333 (2009); Illinois v. Caballes, 543 U.S. 405, 407 (2005) (“A seizure that is justified solely by the interest in issuing a warning ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that mission”). And it would disrupt the federal framework to put state officers in the position of holding aliens in custody for possible unlawful presence without federal direction and supervision. Cf. Part IV–C, supra (concluding that Ari zona may not authorize warrantless arrests on the basis of removability). The program put in place by Congress does not allow state or local officers to adopt this enforcement mechanism. But §2(B) could be read to avoid these concerns. To take one example, a person might be stopped for jaywalking in Tucson and be unable to produce identification. The first sentence of §2(B) instructs officers to make a “reasonable” attempt to verify his immigration status with ICE if there is reasonable suspicion that his presence in the United States is unlawful. The state courts may conclude that, unless the person continues to be suspected of some crime for which he may be detained by state officers, it would not be reasonable to prolong the stop for the immigration inquiry. See Reply Brief for Petitioners 12, n. 4 (“[Section 2(B)] does not require the verification be completed during the stop or detention if that is not reasonable or practica ble”); cf. Muehler v. Mena, 544 U.S. 93, 101 (2005) (finding no Fourth Amendment violation where questioning about Cite as: 567 U. S. ____ (2012) 23 Opinion of the Court immigration status did not prolong a stop). To take another example, a person might be held pend ing release on a charge of driving under the influence of alcohol. As this goes beyond a mere stop, the arrestee (unlike the jaywalker) would appear to be subject to the categorical requirement in the second sentence of §2(B) that “[a]ny person who is arrested shall have the person’s immigration status determined before [he] is released.” State courts may read this as an instruction to initiate a status check every time someone is arrested, or in some subset of those cases, rather than as a command to hold the person until the check is complete no matter the cir cumstances. Even if the law is read as an instruction to complete a check while the person is in custody, moreover, it is not clear at this stage and on this record that the verification process would result in prolonged detention. However the law is interpreted, if §2(B) only requires state officers to conduct a status check during the course of an authorized, lawful detention or after a detainee has been released, the provision likely would survive pre- emption—at least absent some showing that it has other consequences that are adverse to federal law and its objec tives. There is no need in this case to address whether reasonable suspicion of illegal entry or another immigra tion crime would be a legitimate basis for prolonging a detention, or whether this too would be preempted by federal law. See, e.g., United States v. Di Re, 332 U.S. 581, 589 (1948) (authority of state officers to make arrests for federal crimes is, absent federal statutory instruction, a matter of state law); Gonzales v. Peoria, 722 F.2d 468, 475–476 (CA9 1983) (concluding that Arizona officers have authority to enforce the criminal provisions of federal immigration law), overruled on other grounds in Hodgers- Durgin v. de la Vina, 199 F.3d 1037 (CA9 1999). The nature and timing of this case counsel caution in evaluating the validity of §2(B). The Federal Government 24 ARIZONA v. UNITED STATES Opinion of the Court has brought suit against a sovereign State to challenge the provision even before the law has gone into effect. There is a basic uncertainty about what the law means and how it will be enforced. At this stage, without the benefit of a definitive interpretation from the state courts, it would be inappropriate to assume §2(B) will be construed in a way that creates a conflict with federal law. Cf. Fox v. Wash- ington, 236 U.S. 273, 277 (1915) (“So far as statutes fairly may be construed in such a way as to avoid doubtful con stitutional questions they should be so construed; and it is to be presumed that state laws will be construed in that way by the state courts” (citation omitted)). As a result, the United States cannot prevail in its current challenge. See Huron Portland Cement Co. v. Detroit, 362 U.S. 440, 446 (1960) (“To hold otherwise would be to ignore the teaching of this Court’s decisions which enjoin seeking out conflicts between state and federal regulation where none clearly exists”). This opinion does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect. V Immigration policy shapes the destiny of the Nation. On May 24, 2012, at one of this Nation’s most distin guished museums of history, a dozen immigrants stood before the tattered flag that inspired Francis Scott Key to write the National Anthem. There they took the oath to become American citizens. The Smithsonian, News Release, Smithsonian Citizenship Ceremony Welcomes a Dozen New Americans (May 24, 2012), online at http://newsdesk.si.edu/releases. These naturalization cere- monies bring together men and women of different ori gins who now share a common destiny. They swear a common oath to renounce fidelity to foreign princes, to defend the Constitution, and to bear arms on behalf of the country when required by law. 8 CFR §337.1(a) (2012). Cite as: 567 U. S. ____ (2012) 25 Opinion of the Court The history of the United States is in part made of the stories, talents, and lasting contributions of those who crossed oceans and deserts to come here. The National Government has significant power to regulate immigration. With power comes responsibility, and the sound exercise of national power over immigration depends on the Nation’s meeting its responsibility to base its laws on a political will informed by searching, thought ful, rational civic discourse. Arizona may have under standable frustrations with the problems caused by illegal immigration while that process continues, but the State may not pursue policies that undermine federal law. * * * The United States has established that §§3, 5(C), and 6 of S. B. 1070 are preempted. It was improper, however, to enjoin §2(B) before the state courts had an opportunity to construe it and without some showing that enforcement of the provision in fact conflicts with federal immigration law and its objectives. The judgment of the Court of Appeals for the Ninth Circuit is affirmed in part and reversed in part. The case is remanded for further proceedings consistent with this opinion. It is so ordered. JUSTICE KAGAN took no part in the consideration or decision of this case. Cite as: 567 U. S. ____ (2012) 1 Opinion of SCALIA, J. SUPREME COURT OF THE UNITED STATES _________________ No. 11–182 _________________ ARIZONA, ET AL., PETITIONERS v. UNITED STATES ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT [June 25, 2012] JUSTICE SCALIA, concurring in part and dissenting in part. The United States is an indivisible “Union of sovereign States.” Hinderlider v. La Plata River & Cherry Creek Ditch Co., 304 U.S. 92, 104 (1938). Today’s opinion, ap proving virtually all of the Ninth Circuit’s injunction against enforcement of the four challenged provisions of Arizona’s law, deprives States of what most would con- sider the defining characteristic of sovereignty: the power to exclude from the sovereign’s territory people who have no right to be there. Neither the Constitution itself nor even any law passed by Congress supports this result. I dissent. I As a sovereign, Arizona has the inherent power to ex clude persons from its territory, subject only to those limitations expressed in the Constitution or constitution ally imposed by Congress. That power to exclude has long been recognized as inherent in sovereignty. Emer de Vattel’s seminal 1758 treatise on the Law of Nations stated: “The sovereign may forbid the entrance of his territory either to foreigners in general, or in particular cases, or to certain persons, or for certain particular pur- poses, according as he may think it advantageous to 2 ARIZONA v. UNITED STATES Opinion of SCALIA, J. the state. There is nothing in all this, that does not flow from the rights of domain and sovereignty: every one is obliged to pay respect to the prohibition; and whoever dares violate it, incurs the penalty decreed to render it effectual.” The Law of Nations, bk. II, ch. VII, §94, p. 309 (B. Kapossy & R. Whatmore eds. 2008). See also I R. Phillimore, Commentaries upon Internation al Law, pt. III, ch. X, p. 233 (1854) (“It is a received maxim of International Law that, the Government of a State may prohibit the entrance of strangers into the country”).1 There is no doubt that “before the adoption of the consti tution of the United States” each State had the author- ity to “prevent [itself] from being burdened by an influx of persons.” Mayor of New York v. Miln, 11 Pet. 102, 132– 133 (1837). And the Constitution did not strip the States of that authority. To the contrary, two of the Constitu tion’s provisions were designed to enable the States to prevent “the intrusion of obnoxious aliens through other States.” Letter from James Madison to Edmund Randolph (Aug. 27, 1782), in 1 The Writings of James Madison 226 (1900); accord, The Federalist No. 42, pp. 269–271 (C. Rossiter ed. 1961) (J. Madison). The Articles of Confeder —————— 1 Many of the 17th-, 18th-, and 19th-century commentators main tained that states should exclude foreigners only for good reason. Pufendorf, for example, maintained that states are generally expected to grant “permanent settlement to strangers who have been driven from their former home,” though acknowledging that, when faced with the prospect of mass immigration, “every state may decide after its own custom what privilege should be granted in such a situation.” 2 Of the Law of Nature and Nations, bk. III, ch. III, §10, p. 366 (C. Oldfather & W. Oldfather eds. 1934). See generally Cleveland, Powers Inherent in Sovereignty: Indians, Aliens, Territories, and the Nineteenth Century Origins of Plenary Power over Foreign Affairs, 81 Tex. L. Rev. 1, 83–87 (2002). But the authority to exclude was universally accepted as inherent in sovereignty, whatever prudential limitations there might be on its exercise. Cite as: 567 U. S. ____ (2012) 3 Opinion of SCALIA, J. ation had provided that “the free inhabitants of each of these States, paupers, vagabonds and fugitives from jus tice excepted, shall be entitled to all privileges and im munities of free citizens in the several States.” Articles of Confederation, Art. IV. This meant that an unwelcome alien could obtain all the rights of a citizen of one State simply by first becoming an inhabitant of another. To remedy this, the Constitution’s Privileges and Immunities Clause provided that “[t]he Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” Art. IV, §2, cl. 1 (emphasis added). But if one State had particularly lax citizenship standards, it might still serve as a gateway for the entry of “obnoxious aliens” into other States. This problem was solved “by authorizing the general government to establish a uniform rule of naturalization throughout the United States.” The Federalist No. 42, supra, at 271; see Art. I, §8, cl. 4. In other words, the naturalization power was given to Con gress not to abrogate States’ power to exclude those they did not want, but to vindicate it. Two other provisions of the Constitution are an ac knowledgment of the States’ sovereign interest in protect ing their borders. Article I provides that “[n]o State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be abso lutely necessary for executing it’s inspection Laws.” Art. I, §10, cl. 2 (emphasis added). This assumed what everyone assumed: that the States could exclude from their territory dangerous or unwholesome goods. A later portion of the same section provides that “[n]o State shall, without the Consent of Congress, . . . engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.” Art. I, §10, cl. 3 (emphasis added). This limits the States’ sovereignty (in a way not relevant here) but leaves intact their inherent power to protect their territory. Notwithstanding “[t]he myth of an era of unrestricted 4 ARIZONA v. UNITED STATES Opinion of SCALIA, J. immigration” in the first 100 years of the Republic, the States enacted numerous laws restricting the immigra- tion of certain classes of aliens, including convicted crimi nals, indigents, persons with contagious diseases, and (in Southern States) freed blacks. Neuman, The Lost Century of American Immigration (1776–1875), 93 Colum. L. Rev. 1833, 1835, 1841–1880 (1993). State laws not only pro vided for the removal of unwanted immigrants but also imposed penalties on unlawfully present aliens and those who aided their immigration.2 Id., at 1883. In fact, the controversy surrounding the Alien and Sedition Acts involved a debate over whether, under the Constitution, the States had exclusive authority to enact such immigration laws. Criticism of the Sedition Act has become a prominent feature of our First Amendment jurisprudence, see, e.g., New York Times Co. v. Sullivan, 376 U.S. 254, 273–276 (1964), but one of the Alien Acts3 also aroused controversy at the time: “Be it enacted by the Senate and House of Representa tives of the United States of America in Congress as sembled, That it shall be lawful for the President of the United States at any time during the continuance of this act, to order all such aliens as he shall judge dangerous to the peace and safety of the United States, or shall have reasonable grounds to suspect are concerned in any treasonable or secret machina tions against the government thereof, to depart out of the territory of the United States . . . .” An Act con cerning Aliens, 1 Stat. 570, 570–571. —————— 2 E.g., Va. Code Tit. 54, ch. 198, §39 (1849) (“If a master of a vessel or other person, knowingly, import or bring into this state, from any place out of the United States, any person convicted of crime . . . he shall be confined in jail for three months, and be fined one hundred dollars”). 3 There were two Alien Acts, one of which dealt only with enemy aliens. An Act respecting Alien Enemies, 1 Stat. 577. Cite as: 567 U. S. ____ (2012) 5 Opinion of SCALIA, J. The Kentucky and Virginia Resolutions, written in denun ciation of these Acts, insisted that the power to exclude unwanted aliens rested solely in the States. Jefferson’s Kentucky Resolutions insisted “that alien friends are under the jurisdiction and protection of the laws of the state wherein they are [and] that no power over them has been delegated to the United States, nor prohibited to the individual states, distinct from their power over citi zens.” Kentucky Resolutions of 1798, reprinted in J. Powell, Languages of Power: A Sourcebook of Early American Constitutional History 131 (1991). Madison’s Virginia Resolutions likewise contended that the Alien Act pur ported to give the President “a power nowhere delegated to the federal government.” Virginia Resolutions of 1798, reprinted in Powell, supra, at 134 (emphasis omitted). Notably, moreover, the Federalist proponents of the Act defended it primarily on the ground that “[t]he removal of aliens is the usual preliminary of hostility” and could therefore be justified in exercise of the Federal Govern ment’s war powers. Massachussets Resolutions in Reply to Virginia, reprinted in Powell, supra, at 136. In Mayor of New York v. Miln, this Court considered a New York statute that required the commander of any ship arriving in New York from abroad to disclose “the name, place of birth, and last legal settlement, age and occupation . . . of all passengers . . . with the intention of proceeding to the said city.” 11 Pet., at 130–131. After discussing the sovereign authority to regulate the en trance of foreigners described by De Vattel, the Court said: “The power . . . of New York to pass this law having undeniably existed at the formation of the constitu tion, the simply inquiry is, whether by that instru ment it was taken from the states, and granted to congress; for if it were not, it yet remains with them.” Id., at 132. 6 ARIZONA v. UNITED STATES Opinion of SCALIA, J. And the Court held that it remains. Id., at 139. II One would conclude from the foregoing that after the adoption of the Constitution there was some doubt about the power of the Federal Government to control immigra tion, but no doubt about the power of the States to do so. Since the founding era (though not immediately), doubt about the Federal Government’s power has disappeared. Indeed, primary responsibility for immigration policy has shifted from the States to the Federal Government. Con gress exercised its power “[t]o establish an uniform Rule of Naturalization,” Art. I, §8, cl. 4, very early on, see An Act to establish an uniform Rule of Naturalization, 1 Stat. 103. But with the fleeting exception of the Alien Act, Congress did not enact any legislation regulating immi gration for the better part of a century. In 1862, Congress passed “An Act to prohibit the ‘Coolie Trade’ by American Citizens in American Vessels,” which prohibited “procur ing [Chinese nationals] . . . to be disposed of, or sold, or transferred, for any term of years or for any time what ever, as servants or apprentices, or to be held to service or labor.” 12 Stat. 340. Then, in 1875, Congress amended that act to bar admission to Chinese, Japanese, and other Asian immigrants who had “entered into a contract or agreement for a term of service within the United States, for lewd and immoral purposes.” An act supplementary to the acts in relation to immigration, ch. 141, 18 Stat. 477. And in 1882, Congress enacted the first general immi gration statute. See An act to regulate Immigration, 22 Stat. 214. Of course, it hardly bears mention that Federal immigration law is now extensive. I accept that as a valid exercise of federal power—not because of the Naturalization Clause (it has no necessary connection to citizenship) but because it is an inherent attribute of sovereignty no less for the United States than Cite as: 567 U. S. ____ (2012) 7 Opinion of SCALIA, J. for the States. As this Court has said, it is an “ ‘accepted maxim of international law, that every sovereign nation has the power, as inherent in sovereignty, and essential to self-preservation, to forbid the entrance of foreigners within its dominions.’ ” Fong Yue Ting v. United States, 149 U.S. 698, 705 (1893) (quoting Ekiu v. United States, 142 U.S. 651, 659 (1892)). That is why there was no need to set forth control of immigration as one of the enumer ated powers of Congress, although an acknowledgment of that power (as well as of the States’ similar power, subject to federal abridgment) was contained in Art. I, §9, which provided that “[t]he Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight . . . .” In light of the predominance of federal immigration restrictions in modern times, it is easy to lose sight of the States’ traditional role in regulating immigration—and to overlook their sovereign prerogative to do so. I accept as a given that State regulation is excluded by the Constitution when (1) it has been prohibited by a valid federal law, or (2) it conflicts with federal regulation—when, for example, it admits those whom federal regulation would exclude, or excludes those whom federal regulation would admit. Possibility (1) need not be considered here: there is no federal law prohibiting the States’ sovereign power to ex- clude (assuming federal authority to enact such a law). The mere existence of federal action in the immigration area—and the so-called field preemption arising from that action, upon which the Court’s opinion so heavily relies, ante, at 9–11—cannot be regarded as such a prohibition. We are not talking here about a federal law prohibiting the States from regulating bubble-gum advertising, or even the construction of nuclear plants. We are talking about a federal law going to the core of state sovereignty: 8 ARIZONA v. UNITED STATES Opinion of SCALIA, J. the power to exclude. Like elimination of the States’ other inherent sovereign power, immunity from suit, elimina- tion of the States’ sovereign power to exclude requires that “Congress . . . unequivocally expres[s] its intent to abro gate,” Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 55 (1996) (internal quotation marks and citation omitted). Implicit “field preemption” will not do. Nor can federal power over illegal immigration be deemed exclusive because of what the Court’s opinion solicitously calls “foreign countries[ ’] concern[s] about the status, safety, and security of their nationals in the United States,” ante, at 3. The Constitution gives all those on our shores the protections of the Bill of Rights—but just as those rights are not expanded for foreign nationals be cause of their countries’ views (some countries, for exam ple, have recently discovered the death penalty to be barbaric), neither are the fundamental sovereign powers of the States abridged to accommodate foreign countries’ views. Even in its international relations, the Federal Government must live with the inconvenient fact that it is a Union of independent States, who have their own sover eign powers. This is not the first time it has found that a nuisance and a bother in the conduct of foreign policy. Four years ago, for example, the Government importuned us to interfere with thoroughly constitutional state judicial procedures in the criminal trial of foreign nationals be cause the international community, and even an opinion of the International Court of Justice, disapproved them. See Medellín v. Texas, 552 U.S. 491 (2008). We rejected that request, as we should reject the Executive’s invocation of foreign-affairs considerations here. Though it may upset foreign powers—and even when the Federal Government desperately wants to avoid upsetting foreign powers—the States have the right to protect their borders against foreign nationals, just as they have the right to execute foreign nationals for murder. Cite as: 567 U. S. ____ (2012) 9 Opinion of SCALIA, J. What this case comes down to, then, is whether the Arizona law conflicts with federal immigration law— whether it excludes those whom federal law would admit, or admits those whom federal law would exclude. It does not purport to do so. It applies only to aliens who neither possess a privilege to be present under federal law nor have been removed pursuant to the Federal Government’s inherent authority. I proceed to consider the challenged provisions in detail. §2(B) “For any lawful stop, detention or arrest made by a law enforcement official . . . in the enforcement of any other law or ordinance of a county, city or town or this state where reasonable suspicion exists that the per son is an alien and is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person, except if the determination may hinder or obstruct an investigation. Any person who is arrested shall have the person’s immigration status deter mined before the person is released. . . .” S. B. 1070, §2(B), as amended, Ariz. Rev. Stat. Ann. §11–1051(B) (West 2012). The Government has conceded that “even before Section 2 was enacted, state and local officers had state-law au thority to inquire of DHS [the Department of Homeland Security] about a suspect’s unlawful status and other- wise cooperate with federal immigration officers.” Brief for United States 47 (citing App. 62, 82); see also Brief for United States 48–49. That concession, in my view, ob- viates the need for further inquiry. The Government’s conflict-pre-emption claim calls on us “to determine whether, under the circumstances of this particular case, [the State’s] law stands as an obstacle to the accomplish ment and execution of the full purposes and objectives of 10 ARIZONA v. UNITED STATES Opinion of SCALIA, J. Congress.” Hines v. Davidowitz, 312 U.S. 52, 67 (1941) (emphasis added). It is impossible to make such a finding without a factual record concerning the manner in which Arizona is implementing these provisions—something the Government’s pre-enforcement challenge has pretermitted. “The fact that [a law] might operate unconstitutionally under some conceivable set of circumstances is insuf- ficient to render it wholly invalid, since we have not recognized an ‘overbreadth’ doctrine outside the limited context of the First Amendment.” United States v. Sal erno, 481 U.S. 739, 745 (1987). And on its face, §2(B) merely tells state officials that they are authorized to do something that they were, by the Government’s con cession, already authorized to do. The Court therefore properly rejects the Government’s challenge, recognizing that, “[a]t this stage, without the benefit of a definitive interpretation from the state courts, it would be inappropriate to assume §2B will be construed in a way that creates a conflict with federal law.” Ante, at 23. Before reaching that conclusion, however, the Court goes to great length to assuage fears that “state officers will be required to delay the release of some detainees for no reason other than to verify their immigration status.” Ante, at 22. Of course, any investigatory detention, in cluding one under §2(B), may become an “unreasonable . . . seizur[e],” U. S. Const., Amdt. IV, if it lasts too long. See Illinois v. Caballes, 543 U.S. 405, 407 (2005). But that has nothing to do with this case, in which the Gov ernment claims that §2(B) is pre-empted by federal immi gration law, not that anyone’s Fourth Amendment rights have been violated. And I know of no reason why a protracted detention that does not violate the Fourth Amendment would contradict or conflict with any federal immigration law. Cite as: 567 U. S. ____ (2012) 11 Opinion of SCALIA, J. §6 “A peace officer, without a warrant, may arrest a per son if the officer has probable cause to believe . . . [t]he person to be arrested has committed any public offense that makes the person removable from the United States.” S. B. 1070, §6(A)(5), Ariz. Rev. Stat. Ann. §13–3883(A)(5) (West Supp. 2011). This provision of S. B. 1070 expands the statutory list of offenses for which an Arizona police officer may make an arrest without a warrant. See §13–3883. If an officer has probable cause to believe that an individual is “removable” by reason of a public offense, then a warrant is not re quired to make an arrest. The Government’s primary contention is that §6 is pre-empted by federal immigration law because it allows state officials to make arrests “with out regard to federal priorities.” Brief for United States 53. The Court’s opinion focuses on limits that Congress has placed on federal officials’ authority to arrest remov able aliens and the possibility that state officials will make arrests “to achieve [Arizona’s] own immigration policy” and “without any input from the Federal Government.” Ante, at 17. Of course on this pre-enforcement record there is no reason to assume that Arizona officials will ignore federal immigration policy (unless it be the questionable policy of not wanting to identify illegal aliens who have committed offenses that make them removable). As Arizona points out, federal law expressly provides that state officers may “cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States,” 8 U.S. C. §1357(g)(10)(B); and “cooperation” requires neither identical efforts nor prior federal approval. It is consistent with the Arizona statute, and with the “cooperat[ive]” system that Congress has created, for state officials to arrest a removable alien, 12 ARIZONA v. UNITED STATES Opinion of SCALIA, J. contact federal immigration authorities, and follow their lead on what to do next. And it is an assault on logic to say that identifying a removable alien and holding him for federal determination of whether he should be removed “violates the principle that the removal process is entrusted to the discretion of the Federal Government,” ante, at 18. The State’s detention does not represent commence ment of the removal process unless the Federal Govern ment makes it so. But that is not the most important point. The most important point is that, as we have discussed, Arizona is entitled to have “its own immigration policy”—including a more rigorous enforcement policy—so long as that does not conflict with federal law. The Court says, as though the point is utterly dispositive, that “it is not a crime for a removable alien to remain present in the United States,” ante, at 15. It is not a federal crime, to be sure. But there is no reason Arizona cannot make it a state crime for a removable alien (or any illegal alien, for that matter) to remain present in Arizona. The Court quotes 8 U.S. C. §1226(a), which provides that, “[o]n a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States.” Section 1357(a)(2) also provides that a federal immigration official “shall have power without warrant . . . to arrest any alien in the United States, if he has reason to believe that the alien so arrested is in the United States in violation of any [federal immigration] law or regulation and is likely to escape before a warrant can be obtained for his arrest.” But statutory limitations upon the actions of federal officers in enforcing the United States’ power to protect its borders do not on their face apply to the actions of state officers in enforcing the State’s power to protect its borders. There is no more reason to read these provisions as implying that state officials are subject to similar limi Cite as: 567 U. S. ____ (2012) 13 Opinion of SCALIA, J. tations than there is to read them as implying that only federal officials may arrest removable aliens. And in any event neither implication would constitute the sort of clear elimination of the States’ sovereign power that our cases demand. The Court raises concerns about “unnecessary harass ment of some aliens . . . whom federal officials determine should not be removed.” Ante, at 17. But we have no license to assume, without any support in the record, that Arizona officials would use their arrest authority under §6 to harass anyone. And it makes no difference that federal officials might “determine [that some unlawfully present aliens] should not be removed,” ibid. They may well de termine not to remove from the United States aliens who have no right to be here; but unless and until these aliens have been given the right to remain, Arizona is entitled to arrest them and at least bring them to federal officials’ attention, which is all that §6 necessarily entails. (In my view, the State can go further than this, and punish them for their unlawful entry and presence in Arizona.) The Government complains that state officials might not heed “federal priorities.” Indeed they might not, particu larly if those priorities include willful blindness or delib- erate inattention to the presence of removable aliens in Arizona. The State’s whole complaint—the reason this law was passed and this case has arisen—is that the citizens of Arizona believe federal priorities are too lax. The State has the sovereign power to protect its borders more rigorously if it wishes, absent any valid federal prohibition. The Executive’s policy choice of lax federal enforcement does not constitute such a prohibition. §3 “In addition to any violation of federal law, a person is guilty of willful failure to complete or carry an alien registration document if the person is in violation of 8 14 ARIZONA v. UNITED STATES Opinion of SCALIA, J. [U. S. C.] §1304(e) or §1306(a).” S. B. 1070, §3(A), as amended, Ariz. Rev. Stat. Ann. §13–1509(A). It is beyond question that a State may make violation of federal law a violation of state law as well. We have held that to be so even when the interest protected is a distinc tively federal interest, such as protection of the dignity of the national flag, see Halter v. Nebraska, 205 U.S. 34 (1907), or protection of the Federal Government’s ability to recruit soldiers, Gilbert v. Minnesota, 254 U.S. 325 (1920). “[T]he State is not inhibited from making the national purposes its own purposes to the extent of exerting its police power to prevent its own citizens from obstructing the accomplishment of such purposes.” Id., at 331 (inter nal quotation marks omitted). Much more is that so when, as here, the State is protecting its own interest, the integ rity of its borders. And we have said that explicitly with regard to illegal immigration: “Despite the exclusive fed eral control of this Nation’s borders, we cannot conclude that the States are without any power to deter the influx of persons entering the United States against federal law, and whose numbers might have a discernible impact on traditional state concerns.” Plyler v. Doe, 457 U.S. 202, 228, n. 23 (1982). The Court’s opinion relies upon Hines v. Davidowitz, supra. Ante, at 9–10. But that case did not, as the Court believes, establish a “field preemption” that implicitly eliminates the States’ sovereign power to exclude those whom federal law excludes. It held that the States are not permitted to establish “additional or auxiliary” registra tion requirements for aliens. 312 U. S., at 66–67. But §3 does not establish additional or auxiliary registration requirements. It merely makes a violation of state law the very same failure to register and failure to carry evidence of registration that are violations of federal law. Hines does not prevent the State from relying on the federal Cite as: 567 U. S. ____ (2012) 15 Opinion of SCALIA, J. registration system as “an available aid in the enforce ment of a number of statutes of the state applicable to aliens whose constitutional validity has not been ques tioned.” Id., at 75–76 (Stone, J., dissenting). One such statute is Arizona’s law forbidding illegal aliens to collect unemployment benefits, Ariz. Rev. Stat. Ann. §23–781(B) (West 2012). To enforce that and other laws that validly turn on alien status, Arizona has, in Justice Stone’s words, an interest in knowing “the number and whereabouts of aliens within the state” and in having “a means of their identification,” 312 U. S., at 75. And it can punish the aliens’ failure to comply with the provisions of federal law that make that knowledge and identification possible. In some areas of uniquely federal concern—e.g., fraud in a federal administrative process (Buckman Co. v. Plain tiffs’ Legal Comm., 531 U.S. 341 (2001)) or perjury in violation of a federally required oath (In re Loney, 134 U.S. 372 (1890))—this Court has held that a State has no legitimate interest in enforcing a federal scheme. But the federal alien registration system is certainly not of uniquely federal interest. States, private entities, and individuals rely on the federal registration system (including the E-Verify program) on a regular basis. Arizona’s legitimate in terest in protecting (among other things) its unemployment benefits system is an entirely adequate basis for making the violation of federal registration and carry require ments a violation of state law as well. The Court points out, however, ante, at 11, that in some respects the state law exceeds the punishments prescribed by federal law: It rules out probation and pardon, which are available under federal law. The answer is that it makes no difference. Illegal immigrants who violate §3 violate Arizona law. It is one thing to say that the Su premacy Clause prevents Arizona law from excluding those whom federal law admits. It is quite something else to say that a violation of Arizona law cannot be punished 16 ARIZONA v. UNITED STATES Opinion of SCALIA, J. more severely than a violation of federal law. Especially where (as here) the State is defending its own sovereign interests, there is no precedent for such a limitation. The sale of illegal drugs, for example, ordinarily violates state law as well as federal law, and no one thinks that the state penalties cannot exceed the federal. As I have dis cussed, moreover, “field preemption” cannot establish a prohibition of additional state penalties in the area of immigration. Finally, the Government also suggests that §3 poses an obstacle to the administration of federal immigration law, see Brief for United States 31–33, but “there is no conflict in terms, and no possibility of such conflict, [if] the state statute makes federal law its own,” California v. Zook, 336 U.S. 725, 735 (1949). It holds no fear for me, as it does for the Court, that “[w]ere §3 to come into force, the State would have the power to bring criminal charges against individuals for violating a federal law even in circumstances where fed- eral officials in charge of the comprehensive scheme de termine that prosecution would frustrate federal policies.” Ante, at 11. That seems to me entirely appropriate when the State uses the federal law (as it must) as the criterion for the exercise of its own power, and the implementation of its own policies of excluding those who do not belong there. What I do fear—and what Arizona and the States that support it fear—is that “federal policies” of nonen forcement will leave the States helpless before those evil effects of illegal immigration that the Court’s opinion dutifully recites in its prologue (ante, at 6) but leaves unremedied in its disposition. §5(C) “It is unlawful for a person who is unlawfully present in the United States and who is an unauthorized alien to knowingly apply for work, solicit work in a public Cite as: 567 U. S. ____ (2012) 17 Opinion of SCALIA, J. place or perform work as an employee or independent contractor in this state.” S. B. 1070, §5(C), as amended, Ariz. Rev. Stat. Ann. §13–2928(C). Here, the Court rightly starts with De Canas v. Bica, 424 U.S. 351 (1976), which involved a California law providing that “ ‘[n]o employer shall knowingly employ an alien who is not entitled to lawful residence in the United States if such employment would have an adverse effect on lawful resident workers.’ ” Id., at 352 (quoting Califor nia Labor Code Ann. §2805(a)). This Court concluded that the California law was not pre-empted, as Congress had neither occupied the field of “regulation of employment of illegal aliens” nor expressed “the clear and manifest pur pose” of displacing such state regulation. Id., at 356–357 (internal quotation marks omitted). Thus, at the time De Canas was decided, §5(C) would have been indubitably lawful. The only relevant change is that Congress has since enacted its own restrictions on employers who hire illegal aliens, 8 U.S. C. §1324a, in legislation that also includes some civil (but no criminal) penalties on illegal aliens who accept unlawful employment. The Court concludes from this (reasonably enough) “that Congress made a deliberate choice not to impose criminal penalties on aliens who seek, or engage in, unauthorized employment,” ante, at 13. But that is not the same as a deliberate choice to prohibit the States from imposing criminal penalties. Congress’s intent with regard to exclusion of state law need not be guessed at, but is found in the law’s express pre-emption provision, which excludes “any State or local law impos- ing civil or criminal sanctions (other than through licens ing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens,” §1324a(h)(2) (emphasis added). Common sense, reflected in the canon expressio unius est exclusio alterius, suggests 18 ARIZONA v. UNITED STATES Opinion of SCALIA, J. that the specification of pre-emption for laws punishing “those who employ” implies the lack of pre-emption for other laws, including laws punishing “those who seek or accept employment.” The Court has no credible response to this. It quotes our jurisprudence to the effect that an “express pre emption provisio[n] does not bar the ordinary working of conflict pre-emption principles.” Ante, at 14 (quoting Geier v. American Honda Motor Co., 529 U.S. 861, 869 (2000) (internal quotation marks omitted)). True enough— conflict preemption principles. It then goes on say that since “Congress decided it would be inappropriate to im pose criminal penalties on aliens who seek or engage in unauthorized employment,” “[i]t follows that a state law to the contrary is an obstacle to the regulatory system Con gress chose.” Ante, at 15. For “ ‘[w]here a comprehensive federal scheme intentionally leaves a portion of the regu lated field without controls, then the pre-emptive inference can be drawn.’ ” Ibid. (quoting Puerto Rico Dept. of Con sumer Affairs v. ISLA Petroleum Corp., 485 U.S. 495, 503 (1988)). All that is a classic description not of conflict pre-emption but of field pre-emption, which (concededly) does not occur beyond the terms of an express pre-emption provision. The Court concludes that §5(C) “would interfere with the careful balance struck by Congress,” ante, at 15, (an other field pre-emption notion, by the way) but that is easy to say and impossible to demonstrate. The Court relies primarily on the fact that “[p]roposals to make unauthor ized work a criminal offense were debated and discussed during the long process of drafting [the Immigration Re form and Control Act of 1986 (IRCA)],” “[b]ut Congress rejected them.” Ante, at 14. There is no more reason to believe that this rejection was expressive of a desire that there be no sanctions on employees, than expressive of a desire that such sanctions be left to the States. To tell the Cite as: 567 U. S. ____ (2012) 19 Opinion of SCALIA, J. truth, it was most likely expressive of what inaction ordi narily expresses: nothing at all. It is a “naïve assumption that the failure of a bill to make it out of committee, or to be adopted when reported to the floor, is the same as a congressional rejection of what the bill contained.” Crosby v. National Foreign Trade Council, 530 U.S. 363, 389 (2000) (SCALIA, J., concurring in judgment) (internal quotation marks and alterations omitted). * * * The brief for the Government in this case asserted that “the Executive Branch’s ability to exercise discretion and set priorities is particularly important because of the need to allocate scarce enforcement resources wisely.” Brief for United States 21. Of course there is no reason why the Federal Executive’s need to allocate its scarce enforcement resources should disable Arizona from devoting its re sources to illegal immigration in Arizona that in its view the Federal Executive has given short shrift. Despite Congress’s prescription that “the immigration laws of the United States should be enforced vigorously and uniformly,” IRCA §115, 100 Stat. 3384, Arizona asserts without contradiction and with supporting citations: “[I]n the last decade federal enforcement efforts have focused primarily on areas in California and Texas, leaving Arizona’s border to suffer from comparative neglect. The result has been the funneling of an in creasing tide of illegal border crossings into Arizona. Indeed, over the past decade, over a third of the Na tion’s illegal border crossings occurred in Arizona.” Brief for Petitioners 2–3 (footnote omitted). Must Arizona’s ability to protect its borders yield to the reality that Congress has provided inadequate funding for federal enforcement—or, even worse, to the Executive’s unwise targeting of that funding? 20 ARIZONA v. UNITED STATES Opinion of SCALIA, J. But leave that aside. It has become clear that federal enforcement priorities—in the sense of priorities based on the need to allocate “scarce enforcement resources”—is not the problem here. After this case was argued and while it was under consideration, the Secretary of Homeland Security announced a program exempting from immi- gration enforcement some 1.4 million illegal immigrants under the age of 30.4 If an individual unlawfully present in the United States “• came to the United States under the age of sixteen; “• has continuously resided in the United States for at least five years . . . , “• is currently in school, has graduated from high school, has obtained a general education develop ment certificate, or is an honorably discharged veteran . . . , “• has not been convicted of a [serious crime]; and “• is not above the age of thirty,”5 then U. S. immigration officials have been directed to “defe[r] action” against such individual “for a period of two years, subject to renewal.”6 The husbanding of scarce enforcement resources can hardly be the justification for this, since the considerable administrative cost of conduct ing as many as 1.4 million background checks, and ruling on the biennial requests for dispensation that the nonen —————— 4 Preston & Cushman, Obama to Permit Young Migrants to Remain in U. S., N. Y. Times, June 16, 2012, p. A1. 5 Memorandum from Janet Napolitano, Secretary of Homeland Secu rity, to David V. Aguilar, Acting Commissioner, U. S. Customs and Border Protection; Alejandro Mayorkas, Director, U. S. Citizenship and Immigration Services; and John Morton, Director, U. S. Immigra- tion and Customs Enforcement, p. 1 (June 15, 2012), online at http://www.dhs.gov (all Internet materials as visited June 22, 2012, and available in Clerk of Court’s case file). 6 Id., at 2. Cite as: 567 U. S. ____ (2012) 21 Opinion of SCALIA, J. forcement program envisions, will necessarily be deducted from immigration enforcement. The President said at a news conference that the new program is “the right thing to do” in light of Congress’s failure to pass the Administra tion’s proposed revision of the Immigration Act.7 Perhaps it is, though Arizona may not think so. But to say, as the Court does, that Arizona contradicts federal law by enforc ing applications of the Immigration Act that the President declines to enforce boggles the mind. The Court opinion’s looming specter of inutterable hor ror—“[i]f §3 of the Arizona statute were valid, every State could give itself independent authority to prosecute fed- eral registration violations,” ante, at 10—seems to me not so horrible and even less looming. But there has come to pass, and is with us today, the specter that Arizona and the States that support it predicted: A Federal Govern ment that does not want to enforce the immigration laws as written, and leaves the States’ borders unprotected against immigrants whom those laws would exclude. So the issue is a stark one. Are the sovereign States at the mercy of the Federal Executive’s refusal to enforce the Nation’s immigration laws? A good way of answering that question is to ask: Would the States conceivably have entered into the Union if the Constitution itself contained the Court’s holding? Today’s judgment surely fails that test. At the Constitutional Convention of 1787, the delegates contended with “the jealousy of the states with regard to their sovereignty.” 1 Records of the Federal Convention 19 (M. Farrand ed. 1911) (statement of Edmund Randolph). Through ratifica tion of the fundamental charter that the Convention pro duced, the States ceded much of their sovereignty to the Federal Government. But much of it remained jealously —————— 7 Remarks by the President on Immigration (June 15, 2012), online at http://www.whitehouse.gov. 22 ARIZONA v. UNITED STATES Opinion of SCALIA, J. guarded—as reflected in the innumerable proposals that never left Independence Hall. Now, imagine a provision— perhaps inserted right after Art. I, §8, cl. 4, the Naturali zation Clause—which included among the enumerated powers of Congress “To establish Limitations upon Immi gration that will be exclusive and that will be enforced only to the extent the President deems appropriate.” The delegates to the Grand Convention would have rushed to the exits. As is often the case, discussion of the dry legalities that are the proper object of our attention suppresses the very human realities that gave rise to the suit. Arizona bears the brunt of the country’s illegal immigration problem. Its citizens feel themselves under siege by large numbers of illegal immigrants who invade their property, strain their social services, and even place their lives in jeopardy. Federal officials have been unable to remedy the problem, and indeed have recently shown that they are unwilling to do so. Thousands of Arizona’s estimated 400,000 illegal immigrants—including not just children but men and women under 30—are now assured immunity from en forcement, and will be able to compete openly with Ari zona citizens for employment. Arizona has moved to protect its sovereignty—not in contradiction of federal law, but in complete compliance with it. The laws under challenge here do not extend or revise federal immigration restrictions, but merely enforce those restrictions more effectively. If securing its territory in this fashion is not within the power of Arizona, we should cease referring to it as a sovereign State. I dissent. Cite as: 567 U. S. ____ (2012) 1 Opinion of THOMAS, J. SUPREME COURT OF THE UNITED STATES _________________ No. 11–182 _________________ ARIZONA, ET AL., PETITIONERS v. UNITED STATES ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT [June 25, 2012] JUSTICE THOMAS, concurring in part and dissenting in part. I agree with JUSTICE SCALIA that federal immigration law does not pre-empt any of the challenged provisions of S. B. 1070. I reach that conclusion, however, for the sim- ple reason that there is no conflict between the “ordinary meanin[g]” of the relevant federal laws and that of the four provisions of Arizona law at issue here. Wyeth v. Levine, 555 U.S. 555, 588 (2009) (THOMAS, J., concurring in judgment) (“Pre-emption analysis should not be a free- wheeling judicial inquiry into whether a state statute is in tension with federal objectives, but an inquiry into whether the ordinary meanings of state and federal law conflict” (brackets; internal quotation marks omitted)). Section 2(B) of S. B. 1070 provides that, when Arizona law enforcement officers reasonably suspect that a person they have lawfully stopped, detained, or arrested is unlaw- fully present, “a reasonable attempt shall be made, when practicable, to determine the immigration status of the person” pursuant to the verification procedure established by Congress in 8 U.S. C. §1373(c). Ariz. Rev. Stat. Ann. §11–1051(B) (West 2012). Nothing in the text of that or any other federal statute prohibits Arizona from directing its officers to make immigration-related inquiries in these situations. To the contrary, federal law expressly states that “no State or local government entity may be prohib- 2 ARIZONA v. UNITED STATES Opinion of THOMAS, J. ited, or in any way restricted, from sending to or receiving from” federal officials “information regarding the immigra- tion status” of an alien. 8 U.S. C. §1644. And, federal law imposes an affirmative obligation on federal officials to respond to a State’s immigration-related inquiries. §1373(c). Section 6 of S. B. 1070 authorizes Arizona law enforce- ment officers to make warrantless arrests when there is probable cause to believe that an arrestee has committed a public offense that renders him removable under federal immigration law. States, as sovereigns, have inherent authority to conduct arrests for violations of federal law, unless and until Congress removes that authority. See United States v. Di Re, 332 U.S. 581, 589 (1948) (holding that state law determines the validity of a warrantless arrest for a violation of federal law “in the absence of an applicable federal statute”). Here, no federal statute purports to withdraw that authority. As JUSTICE SCALIA notes, ante, at 12 (opinion concurring in part and dissent- ing in part), federal law does limit the authority of federal officials to arrest removable aliens, but those statutes do not apply to state officers. And, federal law expressly recognizes that state officers may “cooperate with the Attorney General” in the “apprehension” and “detention” of “aliens not lawfully present in the United States.” §1357(g)(10)(B). Nothing in that statute indicates that such cooperation requires a prior “request, approval, or other instruction from the Federal Government.” Ante, at 18 (majority opinion). Section 3 of S. B. 1070 makes it a crime under Arizona law for an unlawfully present alien to willfully fail to complete or carry an alien registration document in viola- tion of 8 U.S. C. §1304(e) and §1306(a). Section 3 simply incorporates federal registration standards. Unlike the Court, I would not hold that Congress pre-empted the field of enforcing those standards. “[O]ur recent cases have Cite as: 567 U. S. ____ (2012) 3 Opinion of THOMAS, J. frequently rejected field pre-emption in the absence of statutory language expressly requiring it.” Camps New- found/Owatonna, Inc. v. Town of Harrison, 520 U.S. 564, 617 (1997) (THOMAS, J., dissenting); see, e.g., New York State Dept. of Social Servs. v. Dublino, 413 U.S. 405, 415 (1973). Here, nothing in the text of the relevant federal statutes indicates that Congress intended enforcement of its registration requirements to be exclusively the prov- ince of the Federal Government. That Congress created a “full set of standards governing alien registration,” ante, at 10 (majority opinion), merely indicates that it intended the scheme to be capable of working on its own, not that it wanted to preclude the States from enforcing the federal standards. Hines v. Davidowitz, 312 U.S. 52 (1941), is not to the contrary. As JUSTICE SCALIA explains, ante, at 14, Hines at most holds that federal law pre-empts the States from creating additional registration requirements. But here, Arizona is merely seeking to enforce the very regis- tration requirements that Congress created. Section 5(C) of S. B. 1070 prohibits unlawfully present aliens from knowingly applying for, soliciting, or perform- ing work in Arizona. Section 5(C) operates only on indi- viduals whom Congress has already declared ineligible to work in the United States. Nothing in the text of the federal immigration laws prohibits States from imposing their own criminal penalties on such individuals. Fed- eral law expressly pre-empts States from “imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens.” 8 U.S. C. §1324a(h)(2) (emphasis added). But it leaves States free to impose criminal sanctions on the employees themselves. Despite the lack of any conflict between the ordinary meaning of the Arizona law and that of the federal laws at issue here, the Court holds that various provisions of the Arizona law are pre-empted because they “stan[d] as an 4 ARIZONA v. UNITED STATES Opinion of THOMAS, J. obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Hines, supra, at 67. I have explained that the “purposes and objectives” theory of implied pre-emption is inconsistent with the Constitu- tion because it invites courts to engage in freewheeling speculation about congressional purpose that roams well beyond statutory text. See Wyeth, 555 U. S., at 604 (opin- ion concurring in judgment); see also Williamson v. Mazda Motor of America, Inc., 562 U.S. ___, ___–___ (2011) (opin- ion concurring in judgment) (slip op., at 2–3); Haywood v. Drown, 556 U.S. 729, 767 (2009) (dissenting opinion). Under the Supremacy Clause, pre-emptive effect is to be given to congressionally enacted laws, not to judicially divined legislative purposes. See Wyeth, supra, at 604 (THOMAS, J., concurring in judgment). Thus, even assum- ing the existence of some tension between Arizona’s law and the supposed “purposes and objectives” of Congress, I would not hold that any of the provisions of the Arizona law at issue here are pre-empted on that basis. Cite as: 567 U. S. ____ (2012) 1 Opinion of ALITO, J. SUPREME COURT OF THE UNITED STATES _________________ No. 11–182 _________________ ARIZONA, ET AL., PETITIONERS v. UNITED STATES ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT [June 25, 2012] JUSTICE ALITO, concurring in part and dissenting in part. This case concerns four provisions of Arizona’s Support Our Law Enforcement and Safe Neighborhoods Act, S. B. 1070. Section 2(B) requires Arizona law enforcement officers to make a “reasonable attempt,” “when practica- ble,” to ascertain the immigration status of any person whom an officer lawfully stops, detains, or arrests “where reasonable suspicion exists that the person is an alien and is unlawfully present in the United States.” Ariz. Rev. Stat. Ann. §11–1051(B) (West 2012). Section 3 provides that an alien who willfully fails “to complete or carry an alien registration document” in violation of 8 U.S. C. §1304(e) or §1306(a) is guilty of a misdemeanor. Ariz. Rev. Stat. Ann. §13–1509(A) (West Supp. 2011). Section 5(C) makes it a misdemeanor for an unauthorized alien who is unlawfully present in the United States “to knowingly apply for work, solicit work in a public place or perform work as an employee or independent contractor.” Ariz. Rev. Stat. Ann. §13–2928(C). And §6 authorizes Arizona law enforcement officers to arrest without a warrant any person whom the officer has probable cause to believe “has committed any public offense that makes the person re- movable from the United States.” Ariz. Rev. Stat. Ann. §13–3883(A)(5). I agree with the Court that §2(B) is not pre-empted. 2 ARIZONA v. UNITED STATES Opinion of ALITO, J. That provision does not authorize or require Arizona law enforcement officers to do anything they are not already allowed to do under existing federal law. The United States’ argument that §2(B) is pre-empted, not by any federal statute or regulation, but simply by the Executive’s current enforcement policy is an astounding assertion of federal executive power that the Court rightly rejects. I also agree with the Court that §3 is pre-empted by virtue of our decision in Hines v. Davidowitz, 312 U.S. 52 (1941). Our conclusion in that case that Congress had enacted an “all-embracing system” of alien registration and that States cannot “enforce additional or auxiliary regulations,” id., at 66–67, 74, forecloses Arizona’s attempt here to impose additional, state-law penalties for viola- tions of the federal registration scheme. While I agree with the Court on §2(B) and §3, I part ways on §5(C) and §6. The Court’s holding on §5(C) is inconsistent with De Canas v. Bica, 424 U.S. 351 (1976), which held that employment regulation, even of aliens unlawfully present in the country, is an area of traditional state concern. Because state police powers are implicated here, our precedents require us to presume that federal law does not displace state law unless Congress’ intent to do so is clear and manifest. I do not believe Congress has spoken with the requisite clarity to justify invalidation of §5(C). Nor do I believe that §6 is invalid. Like §2(B), §6 adds virtually nothing to the authority that Arizona law enforcement officers already exercise. And whatever little authority they have gained is consistent with federal law. Section 2(B) A Although §2(B) of the Arizona law has occasioned much controversy, it adds nothing to the authority that Arizona law enforcement officers, like officers in all other States, already possess under federal law. For that reason, I Cite as: 567 U. S. ____ (2012) 3 Opinion of ALITO, J. agree with the Court that §2(B) is not pre-empted. Section 2(B) quite clearly does not expand the authority of Arizona officers to make stops or arrests. It is triggered only when a “lawful stop, detention or arrest [is] made . . . in the enforcement of any other [state or local] law or ordinance.” Ariz. Rev. Stat. Ann. §11–1051(B) (emphasis added). Section 2(B) thus comes into play only when an officer has reasonable suspicion or probable cause to believe that a person has committed a nonimmigration offense. Arizona officers plainly possessed this authority before §2(B) took effect. Section 2(B) also does not expand the authority of Ari- zona officers to inquire about the immigration status of persons who are lawfully detained. When a person is stopped or arrested and “reasonable suspicion exists that the person is an alien and is unlawfully present in the United States,” §2(B) instructs Arizona officers to make a “reasonable attempt,” “when practicable,” to ascertain that person’s immigration status. Ariz. Rev. Stat. Ann. §11– 1051(B). Even before the Arizona Legislature enacted §2(B), federal law permitted state and local officers to make such inquiries. In 8 U.S. C. §1357(g)(10)(A), Con- gress has made clear that state and local governments need not enter into formal agreements with the Federal Government in order “to communicate with the [Federal Government] regarding the immigration status of any individual.” In addition, Congress has mandated that neither the Federal Government nor any state or local government may “prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, [the Federal Government] information regarding the citizenship or immigration status, lawful or unlawful, of any individual.” §1373(a); see also §1644 (providing that “no State or local government entity may be prohibited, or in any way restricted, from sending to or receiving from [the Federal Government] information regarding the 4 ARIZONA v. UNITED STATES Opinion of ALITO, J. immigration status, lawful or unlawful, of an alien in the United States”). And while these provisions preserve the authority of state and local officers to seek immigration- status information from the Federal Government, another federal statute, §1373(c), requires that the Federal Gov- ernment respond to any such inquiries “by providing the requested verification or status information.” It comes as no surprise, therefore, that many States and localities permit their law enforcement officers to make the kinds of inquiries that §2(B) prescribes. See App. 294–298 (report- ing that officers in 59 surveyed state and local jurisdic- tions “generally” ask arrestees about their immigration status while 34 do not and that officers in 78 jurisdictions “generally” inform Immigration and Customs Enforcement (ICE) when they believe an arrestee to be an undocumented alien while only 17 do not). Congress has invited state and local governments to make immigration-related in- quiries and has even obligated the Federal Government to respond. Through §2(B), Arizona has taken Congress up on that invitation. The United States does not deny that officers may, at their own discretion, inquire about the immigration status of persons whom they lawfully detain. Instead, the United States argues that §2(B) is pre-empted because it impedes federal-state cooperation by mandating that officers verify the immigration status of every detained person if there is reason to believe that the person is unlawfully present in the country. The United States claims that §2(B)’s man- date runs contrary to federal law in that it “precludes officers from taking [the Federal Government’s] priorities and discretion into account.” Brief for United States 50. “[B]y interposing a mandatory state law between state and local officers and their federal counterparts,” writes the United States, §2(B) “stands as an obstacle to the ac- complishment of the federal requirement of cooperation and the full effectuation of the enforcement judgment and Cite as: 567 U. S. ____ (2012) 5 Opinion of ALITO, J. discretion Congress has vested in the Executive Branch.” Ibid. (internal quotation marks and citation omitted). The underlying premise of the United States’ argument seems to be that state and local officers, when left to their own devices, generally take federal enforcement priorities into account. But there is no reason to think that this premise is true. And even if it were, it would not follow that §2(B)’s blanket mandate is at odds with federal law. Nothing in the relevant federal statutes requires state and local officers to consider the Federal Government’s priori- ties before requesting verification of a person’s immigra- tion status. Neither 8 U.S. C. §1357(g)(10) nor §1373(a) conditions the right of state and local officers to communi- cate with the Federal Government on their first taking account of its priorities. Nor does §1373(c) condition the Federal Government’s obligation to answer requests for in- formation on the sensitivity of state and local officers to its enforcement discretion. In fact, §1373(c) dictates that the Federal Government “shall respond” to any inquiry seeking verification of immigration status, and that com- mand applies whether or not the requesting officer has bothered to consider federal priorities. Because no federal statute requires such consideration, §2(B) does not conflict with federal law. In any event, it is hard to see how state and local offi- cers could proceed in conformity with the Federal Govern- ment’s enforcement priorities without making an inquiry into a suspected alien’s immigration status. For example, one of the Federal Government’s highest priorities is the apprehension and removal of aliens who have failed to comply with a final order of removal. See App. 108. How can an officer identify those persons without first in- quiring about their status? At bottom, the discretion that ultimately matters is not whether to verify a person’s immigration status but whether to act once the person’s status is known. For that reason, §2(B)’s verification 6 ARIZONA v. UNITED STATES Opinion of ALITO, J. requirement is not contrary to federal law because the Federal Government retains the discretion that matters most––that is, the discretion to enforce the law in par- ticular cases. If an Arizona officer contacts the Federal Government to verify a person’s immigration status and federal records reveal that the person is in the coun- try unlawfully, the Federal Government decides, presum- ably based on its enforcement priorities, whether to have the person released or transferred to federal custody. Enforcement discretion thus lies with the Federal Gov- ernment, not with Arizona. Nothing in §2(B) suggests otherwise. The United States’ attack on §2(B) is quite remarkable. The United States suggests that a state law may be pre- empted, not because it conflicts with a federal statute or regulation, but because it is inconsistent with a federal agency’s current enforcement priorities. Those priorities, however, are not law. They are nothing more than agency policy. I am aware of no decision of this Court recognizing that mere policy can have pre-emptive force. Cf. Barclays Bank PLC v. Franchise Tax Bd. of Cal., 512 U.S. 298, 330 (1994) (holding that “Executive Branch communications that express federal policy but lack the force of law cannot render unconstitutional” an “otherwise valid, congression- ally condoned” state law). If §2(B) were pre-empted at the present time because it is out of sync with the Federal Government’s current priorities, would it be unpre-empted at some time in the future if the agency’s priorities changed? Like most law enforcement agencies, ICE does not set out inflexible rules for its officers to follow. To the con- trary, it provides a list of factors to guide its officers’ enforcement discretion on a case-by-case basis. See Memo- randum from John Morton, Director, ICE, to All Field Office Directors et al., p. 4 (June 17, 2011) (“This list is not exhaustive and no one factor is determinative. ICE offi- Cite as: 567 U. S. ____ (2012) 7 Opinion of ALITO, J. cers, agents, and attorneys should always consider prose- cutorial discretion on a case-by-case basis. The decisions should be based on the totality of the circumstances, with the goal of conforming to ICE’s enforcement priorities”). Among those factors is “the agency’s civil immigration enforcement priorities,” ibid., which change from admin- istration to administration. If accepted, the United States’ pre-emption argument would give the Executive unprece- dented power to invalidate state laws that do not meet with its approval, even if the state laws are otherwise consistent with federal statutes and duly promulgated regulations. This argument, to say the least, is fundamen- tally at odds with our federal system. B It has been suggested that §2(B) will cause some per- sons who are lawfully stopped to be detained in violation of their constitutional rights while a prolonged investiga- tion of their immigration status is undertaken. But noth- ing on the face of the law suggests that it will be enforced in a way that violates the Fourth Amendment or any other provision of the Constitution. The law instructs officers to make a “reasonable attempt” to investigate immigration status, and this language is best understood as incorporat- ing the Fourth Amendment’s standard of reasonableness. Indeed, the Arizona Legislature has directed that §2(B) “shall be implemented in a manner consistent with federal laws . . . protecting the civil rights of all persons and re- specting the privileges and immunities of United States citizens.” Ariz. Rev. Stat. Ann. §11–1051(L). In the situations that seem most likely to occur, en- forcement of §2(B) will present familiar Fourth Amend- ment questions. To take a common situation, suppose that a car is stopped for speeding, a nonimmigration offense. (Recall that §2(B) comes into play only where a stop or arrest is made for a nonimmigration offense.) Suppose 8 ARIZONA v. UNITED STATES Opinion of ALITO, J. also that the officer who makes the stop subsequently acquires reasonable suspicion to believe that the driver entered the country illegally, which is a federal crime. See 8 U.S. C. §1325(a). It is well established that state and local officers gener- ally have authority to make stops and arrests for viola- tions of federal criminal laws. See, e.g., Miller v. United States, 357 U.S. 301, 305 (1958); United States v. Di Re, 332 U.S. 581, 589 (1948). I see no reason why this princi- ple should not apply to immigration crimes as well. Lower courts have so held. See, e.g., Estrada v. Rhode Island, 594 F.3d 56, 65 (CA1 2010) (upholding the lawfulness of a detention because the officer had an objectively reason- able belief that the arrestees “had committed immigra- tion violations”); United States v. Vasquez-Alvarez, 176 F.3d 1294, 1296 (CA10 1999) (noting that “state law- enforcement officers have the general authority to investi- gate and make arrests for violations of federal immigra- tion laws”); Gonzales v. Peoria, 722 F.2d 468, 475 (CA9 1983), overruled on other grounds, Hodgers-Durgin v. de la Vina, 199 F.3d 1037 (1999) (en banc) (holding that “federal law does not preclude local enforcement of the criminal provisions” of federal immigration law). And the United States, consistent with the position long taken by the Office of Legal Counsel (OLC) in the Department of Justice, does not contend otherwise. See Brief for United States 55, n. 33; see also Memorandum from OLC to the Attorney General (Apr. 3, 2002), App. 268–273; Assistance by State and Local Police in Apprehending Illegal Aliens, 20 Op. Off. Legal Counsel 26 (1996). More importantly, no federal statute casts doubt on this authority. To be sure, there are a handful of statutes that purport to authorize state and local officers to make immi- gration-related arrests in certain situations. See, e.g., 8 U.S. C. §1103(a)(10) (providing for the extension of “any” immigration enforcement authority to state and local Cite as: 567 U. S. ____ (2012) 9 Opinion of ALITO, J. officers in the event of an “actual or imminent mass in- flux of aliens arriving off the coast”); §1252c(a) (provid- ing authority to arrest criminal aliens who had illegally reentered the country but only after consultation with the Federal Government); §1324(c) (providing authority to make arrests for transporting and harboring certain aliens). But a grant of federal arrest authority in some cases does not manifest a clear congressional intent to displace the States’ police powers in all other cases. With- out more, such an inference is too weak to overcome our presumption against pre-emption where traditional state police powers are at stake. Accordingly, in our hypothet- ical case, the Arizona officer may arrest the driver for violating §1325(a) if the officer has probable cause. And if the officer has reasonable suspicion, the officer may detain the driver, to the extent permitted by the Fourth Amend- ment, while the question of illegal entry is investigated. We have held that a detention based on reasonable suspicion that the detainee committed a particular crime “can become unlawful if it is prolonged beyond the time reasonably required to complete that mission.” Illinois v. Caballes, 543 U.S. 405, 407 (2005). But if during the course of a stop an officer acquires suspicion that a de- tainee committed a different crime, the detention may be extended for a reasonable time to verify or dispel that suspicion. Cf. Muehler v. Mena, 544 U.S. 93, 101 (2005) (holding that “no additional Fourth Amendment justifica- tion” was required because any questioning concerning immigration status did not prolong the detention). In our hypothetical case, therefore, if the officer, after initially stopping the car for speeding, has a reasonable suspicion that the driver entered the country illegally, the officer may investigate for evidence of illegal entry. But the length and nature of this investigation must remain with- in the limits set out in our Fourth Amendment cases. An investigative stop, if prolonged, can become an arrest and 10 ARIZONA v. UNITED STATES Opinion of ALITO, J. thus require probable cause. See Caballes, supra, at 407. Similarly, if a person is moved from the site of the stop, probable cause will likely be required. See Hayes v. Florida, 470 U.S. 811, 816 (1985) (holding that the line be- tween detention and arrest is crossed “when the police, without probable cause or a warrant, forcibly remove a person from his home or other place in which he is entitled to be and transport him to the police station, where he is detained, although briefly, for investigative purposes”). If properly implemented, §2(B) should not lead to fed- eral constitutional violations, but there is no denying that enforcement of §2(B) will multiply the occasions on which sensitive Fourth Amendment issues will crop up. These civil-liberty concerns, I take it, are at the heart of most objections to §2(B). Close and difficult questions will in- evitably arise as to whether an officer had reasonable suspicion to believe that a person who is stopped for some other reason entered the country illegally, and there is a risk that citizens, lawful permanent residents, and others who are lawfully present in the country will be detained. To mitigate this risk, Arizona could issue guidance to officers detailing the circumstances that typically give rise to reasonable suspicion of unlawful presence. And in the spirit of the federal-state cooperation that the United States champions, the Federal Government could share its own guidelines. Arizona could also provide officers with a nonexclusive list containing forms of identification suffi- cient under §2(B) to dispel any suspicion of unlawful presence. If Arizona accepts licenses from most States as proof of legal status, the problem of roadside detentions will be greatly mitigated.1 —————— 1 When the Real ID Act takes effect, the Federal Government will no longer accept state forms of identification that fail to meet certain federal requirements. §202(a)(1), 119 Stat. 312. One requirement is that any identification be issued only on proof that the applicant is lawfully present in the United States. §202(c)(2)(B), id., at 313. I Cite as: 567 U. S. ____ (2012) 11 Opinion of ALITO, J. Section 3 I agree that §3 is pre-empted because, like the Court, I read the opinion in Hines to require that result. Although there is some ambiguity in Hines, the Court largely spoke in the language of field pre-emption. The Court explained that where Congress “has enacted a complete scheme of regulation and has therein provided a standard for the registration of aliens, states cannot, inconsistently with the purpose of Congress, conflict or interfere with, curtail or complement, the federal law, or enforce additional or auxiliary regulations.” 312 U. S., at 66–67. In finding the Pennsylvania alien-registration law pre-empted, the Court observed that Congress had “provided a standard for alien registration in a single integrated and all-embracing system” and that its intent was “to protect the personal liberties of law-abiding aliens through one uniform na- tional registration system.” Id., at 74. If we credit our holding in Hines that Congress has enacted “a single in- tegrated and all-embracing system” of alien registration and that States cannot “complement” that system or “en- force additional or auxiliary regulations,” id., at 66–67, 74, then Arizona’s attempt to impose additional, state-law penalties for violations of federal registration require- ments must be invalidated. Section 5(C) While I agree that §3 is pre-empted, I disagree with the Court’s decision to strike down §5(C). I do so in large measure because the Court fails to give the same solici- tude to our decision in De Canas, 424 U.S. 351, as it is willing to give our decision in Hines. In De Canas, the Court upheld against a pre-emption challenge a state law imposing fines on employers that hired aliens who were —————— anticipate that most, if not all, States will eventually issue forms of identification that suffice to establish lawful presence under §2(B). 12 ARIZONA v. UNITED STATES Opinion of ALITO, J. unlawfully present in the United States. The Court ex- plained that the mere fact that “aliens are the subject of a state statute does not render it a regulation of immigra- tion.” 424 U. S., at 355. The Court emphasized instead that “States possess broad authority under their police powers to regulate the employment relationship to protect workers within the State.” Id., at 356. In light of that broad authority, the Court declared that “[o]nly a demon- stration that complete ouster of state power . . . was ‘the clear and manifest purpose of Congress’ would justify” the conclusion that “state regulation designed to protect vital state interests must give way to paramount federal legis- lation.” Id., at 357 (some internal quotation marks omit- ted); see also Bates v. Dow Agrosciences LLC, 544 U.S. 431, 449 (2005) (“In areas of traditional state regulation, [the Court] assume[s] that a federal statute has not sup- planted state law unless Congress has made such an intention ‘clear and manifest’ ” (some internal quotation marks omitted)). The Court now tells us that times have changed. Since De Canas, Congress has enacted “a comprehensive frame- work for combating the employment of illegal aliens,” and even though aliens who seek or obtain unauthorized work are not subject to criminal sanctions, they can suffer civil penalties. Ante, at 12–13 (internal quotation marks omit- ted). Undoubtedly, federal regulation in this area is more pervasive today. But our task remains unchanged: to determine whether the federal scheme discloses a clear and manifest congressional intent to displace state law. The Court gives short shrift to our presumption against pre-emption. Having no express statement of congres- sional intent to support its analysis, the Court infers from stale legislative history and from the comprehensiveness of the federal scheme that “Congress made a deliberate choice not to impose criminal penalties on aliens who seek, or engage in, unauthorized employment.” Ante, at 13. Cite as: 567 U. S. ____ (2012) 13 Opinion of ALITO, J. Because §5(C) imposes such penalties, the Court concludes that it stands as an obstacle to the method of enforcement chosen by Congress. Ante, at 15. The one thing that is clear from the federal scheme is that Congress chose not to impose federal criminal penal- ties on aliens who seek or obtain unauthorized work. But that does not mean that Congress also chose to pre-empt state criminal penalties. The inference is plausible, but far from necessary. As we have said before, the “decision not to adopt a regulation” is not “the functional equivalent of a regulation prohibiting all States and their political subdivisions from adopting such a regulation.” Sprietsma v. Mercury Marine, 537 U.S. 51, 65 (2002). With any statutory scheme, Congress chooses to do some things and not others. If that alone were enough to demonstrate pre- emptive intent, there would be little left over for the States to regulate, especially now that federal authority reaches so far and wide. States would occupy tiny islands in a sea of federal power. This explains why state laws implicating traditional state powers are not pre-empted unless there is a “clear and manifest” congressional inten- tion to do so. Not only is there little evidence that Congress intended to pre-empt state laws like §5(C), there is some evidence that Congress intended the opposite result. In making it unlawful for employers to hire unauthorized aliens, see 8 U.S. C. §1324a(a), Congress made it clear that “any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws)” upon employers was pre-empted, §1324a(h)(2). Noticeably absent is any similar directive pre-empting state or local laws targeting aliens who seek or obtain unauthorized employment. Given that Congress expressly pre-empted certain state and local laws pertaining to employers but remained silent about laws pertaining to employees, one could infer that Congress intended to preserve state and local authority to 14 ARIZONA v. UNITED STATES Opinion of ALITO, J. regulate the employee side of the equation. At the very least, it raises serious doubts about whether Congress intended to pre-empt such authority. The Court dismisses any inferences that might be drawn from the express pre-emption provision. See ante, at 14. But even though the existence of that provision “does not bar the ordinary working of conflict pre-emption principles” or impose a “ ‘special burden’ ” against pre- emption, Geier v. American Honda Motor Co., 529 U.S. 861, 869–870 (2000), it is still probative of congressional intent. And it is the intent of Congress that is the “ulti- mate touchstone.” Retail Clerks v. Schermerhorn, 375 U.S. 96, 103 (1963). The Court infers from Congress’ decision not to impose federal criminal penalties that Congress intended to pre- empt state criminal penalties. But given that the express pre-emption provision covers only state and local laws regulating employers, one could just as well infer that Congress did not intend to pre-empt state or local laws aimed at alien employees who unlawfully seek or obtain work. Surely Congress’ decision not to extend its express pre-emption provision to state or local laws like §5(C) is more probative of its intent on the subject of pre-emption than its decision not to impose federal criminal penalties for unauthorized work. In any event, the point I wish to emphasize is that inferences can be drawn either way. There are no necessary inferences that point decisively for or against pre-emption. Therefore, if we take seriously that state employment regulation is a traditional state concern and can be pre-empted only on a showing of “clear and manifest” congressional intent as required by De Canas, then §5(C) must survive. “Our precedents estab- lish that a high threshold must be met if a state law is to be pre-empted for conflicting with the purposes of a fed- eral Act.” Chamber of Commerce of United States of America v. Whiting, 563 U.S. ___, ___ (2011) (plurality opinion) Cite as: 567 U. S. ____ (2012) 15 Opinion of ALITO, J. (slip op., at 22) (internal quotation marks omitted). I do not believe the United States has surmounted that barrier here. Section 6 I also disagree with the Court’s decision that §6 is pre- empted. This provision adds little to the authority that Arizona officers already possess, and whatever additional authority it confers is consistent with federal law. Section 6 amended an Arizona statute that authorizes warrantless arrests. See Ariz. Rev. Stat. §13–3883 (West 2010). Be- fore §6 was added, that statute already permitted arrests without a warrant for felonies, misdemeanors committed in the arresting officer’s presence, petty offenses, and certain traffic-related criminal violations. See §§13– 3883(A)(1)–(4). Largely duplicating the authority already conferred by these prior subsections, §6 added a new subsection, §13–3883(A)(5) (West Supp. 2011), that au- thorizes officers to make warrantless arrests on probable cause that the arrestee has committed a “public offense” for which the arrestee is removable from the United States. A “public offense” is defined as conduct that is punishable by imprisonment or a fine according to the law of the State where the conduct occurred and that would be punishable under Arizona law had the conduct occurred in Arizona. See §13–105(27). In what way, if any, does §6 enlarge the arrest authority of Arizona officers? It has been suggested that §6 confers new authority in the following three circumstances: (1) where the arrestee committed but has not been charged with committing an offense in another State; (2) where the officer has probable cause to believe the arrestee commit- ted an offense for which he was previously arrested but not prosecuted; and (3) where the arrestee committed but has already served the sentence for a removable offense. 641 F.3d 359, 361 (CA9 2011). These are exceedingly 16 ARIZONA v. UNITED STATES Opinion of ALITO, J. narrow categories, involving circumstances that will rarely arise. But such cases are possible, and therefore we must decide whether there are circumstances under which fed- eral law precludes a state officer from making an arrest based on probable cause that the arrestee committed a removable offense. A The idea that state and local officers may carry out arrests in the service of federal law is not unprecedented. As previously noted, our cases establish that state and local officers may make warrantless arrests for violations of federal law and that “in the absence of an applicable federal statute the law of the state where an arrest with- out warrant takes place determines its validity.” Di Re, 332 U. S., at 589; see also Miller, 357 U. S., at 305 (stating that, where a state officer makes an arrest based on fed- eral law, “the lawfulness of the arrest without warrant is to be determined by reference to state law”). Therefore, given the premise, which I understand both the United States and the Court to accept, that state and local officers do have inherent authority to make arrests in aid of fed- eral law, we must ask whether Congress has done anything to curtail or pre-empt that authority in this particular case. Neither the United States nor the Court goes so far as to say that state and local officers have no power to arrest criminal aliens based on their removability. To do so would fly in the face of 8 U.S. C. §1357(g)(10). Under §§1357(g)(1)–(9), the Federal Government may enter into formal agreements with States and municipalities under which their officers may perform certain duties of a fed- eral immigration officer. But §1357(g)(10)(B) makes clear that States and municipalities need not enter into those agreements “otherwise to cooperate . . . in the identifica- tion, apprehension, detention, or removal of aliens not Cite as: 567 U. S. ____ (2012) 17 Opinion of ALITO, J. lawfully present in the United States.” It goes without saying that state and local officers could not provide meaningful cooperation in the apprehension, detention, and ultimate removal of criminal aliens without some power to make arrests. Although §1357(g)(10) contemplates state and local authority to apprehend criminal aliens for the purpose of removal, the Court rejects out of hand any possibility that officers could exercise that authority without federal direction. Despite acknowledging that there is “ambiguity as to what constitutes cooperation,” the Court says that “no coherent understanding of the term would incorporate the unilateral decision of state officers to arrest an alien for being removable absent any request, approval, or other instruction from the Federal Government.” Ante, at 18. The Court adopts an unnecessarily stunted view of coop- eration. No one would say that a state or local officer has failed to cooperate by making an on-the-spot arrest to enforce federal law. Unsolicited aid is not necessarily uncooperative. To be sure, were an officer to persist in making an ar- rest that the officer knows is unwanted, such conduct would not count as cooperation. But nothing in the rele- vant federal statutes suggests that Congress does not want aliens who have committed removable offenses to be arrested.2 To the contrary, §1226(c)(1) commands that the Executive “shall take into custody any alien” who is de- portable for having committed a specified offense. And §1226(c)(2) substantially limits the circumstances under which the Executive has discretion to release aliens held in custody under paragraph (1). So if an officer arrests an alien who is removable for having committed one of the crimes listed in §1226(c)(1), the Federal Government is —————— 2 That goes for the Executive Branch as well, which has made the apprehension and removal of criminal aliens a priority. See App. 108. 18 ARIZONA v. UNITED STATES Opinion of ALITO, J. obligated to take the alien into custody. That Congress generally requires the Executive to take custody of criminal aliens casts considerable doubt on the Court’s concern that §6 is an obstacle to the Federal Gov- ernment’s exercise of discretion. The Court claims that the authority conferred by §6 “could be exercised without any input from the Federal Government about whether an arrest is warranted in a particular case” and that this “would allow the State to achieve its own immigration policy,” resulting in the “unnecessary harassment of some aliens . . . whom federal officials determine should not be removed.” Ante, at 17. But §1226(c)(1) belies the Court’s fear. In many, if not most, cases involving aliens who are removable for having committed criminal offenses, Con- gress has left the Executive no discretion but to take the alien into custody. State and local officers do not frus- trate the removal process by arresting criminal aliens. The Executive retains complete discretion over whether those aliens are ultimately removed. And once the Fed- eral Government makes a determination that a particular criminal alien will not be removed, then Arizona officers are presumably no longer authorized under §6 to arrest the alien. To be sure, not all offenses for which officers have au- thority to arrest under §6 are covered by §1226(c)(1). As for aliens who have committed those offenses, Congress has given the Executive discretion under §1226(a) over whether to arrest and detain them pending a decision on removal. But the mere fact that the Executive has en- forcement discretion cannot mean that the exercise of state police powers in support of federal law is automati- cally pre-empted. If that were true, then state and local officers could never make arrests to enforce any federal statute because the Executive always has at least some general discretion over the enforcement of federal law as a practical matter. But even assuming that the express Cite as: 567 U. S. ____ (2012) 19 Opinion of ALITO, J. statutory grant of discretion in §1226(a) somehow indi- cates a congressional desire to pre-empt unilateral state and local authority to arrest criminal aliens covered by that provision, §6 is not pre-empted on its face given its substantial overlap with §1226(c)(1). It bears emphasizing that §6 does not mandate the warrantless apprehension of all aliens who have commit- ted crimes for which they are removable. Instead, it only grants state and local officers permission to make such arrests. The trouble with this premature, facial challenge is that it affords Arizona no opportunity to implement its law in a way that would avoid any potential conflicts with federal law. For example, Arizona could promulgate guidelines or regulations limiting the arrest authority conferred by §6 to the crimes specified in §1226(c)(1). And to the extent §1226(c)(1) is unclear about which exact crimes are covered,3 Arizona could go even further and identify specific crimes for which there is no doubt an alien would be removable. The point is that there are plenty of permissible applications of §6, and the Court should not invalidate the statute at this point without at least some indication that Arizona has implemented it in a manner at odds with Congress’ clear and manifest intent. We have said that a facial challenge to a statute is “the most difficult challenge to mount successfully” because “the challenger must establish that no set of circumstances exists under which the [statute] would be valid.” United States v. Salerno, 481 U.S. 739, 745 (1987); see also Anderson v. Edwards, 514 U.S. 143, 155, n. 6 (1995) (applying the Salerno standard in a pre-emption case). As to §6, I do not believe the United States has carried that —————— 3I readily admit that it can be difficult to determine whether a particular conviction will necessarily make an alien removable. See Padilla v. Kentucky, 559 U.S. ___, ___ (2010) (ALITO, J., concurring in judgment) (slip op., at 4). 20 ARIZONA v. UNITED STATES Opinion of ALITO, J. heavy burden. B Finally, the Court tells us that §6 conflicts with federal law because it provides state and local officers with “even greater authority to arrest aliens on the basis of possible removability than Congress has given to trained federal immigration officers.” Ante, at 16–17. The Court points to 8 U.S. C. §1357(a)(2), which empowers “authorized” offi- cers and employees of ICE to make arrests without a fed- eral warrant if “the alien so arrested is in the United States in violation of any [immigration] law or regulation and is likely to escape before a warrant can be obtained for his arrest.” Because §6 would allow Arizona officers to make arrests “regardless of whether a federal warrant has issued or the alien is likely to escape,” ante, at 17, the Court concludes that §6 is an obstacle to the accomplish- ment of Congress’ objectives. But §6 is an obstacle only to the extent it conflicts with Congress’ clear and manifest intent to preclude state and local officers from making arrests except where a federal warrant has issued or the arrestee is likely to escape. By granting warrantless arrest authority to federal officers, Congress has not mani- fested an unmistakable intent to strip state and local officers of their warrantless arrest authority under state law. Likewise, limitations on federal arrest authority do not mean that the arrest authority of state and local officers must be similarly limited. Our opinion in Miller, 357 U.S. 301, is instructive. In that case, a District of Columbia officer, accompanied by a federal officer, made an arrest based on a suspected federal narcotics offense. Id., at 303–304. The federal officer did not have statutory au- thorization to arrest without a warrant, but the local officer did. Id., at 305. We held that District of Columbia law dictated the lawfulness of the arrest. Id., at 305–306. Cite as: 567 U. S. ____ (2012) 21 Opinion of ALITO, J. Where a state or local officer makes a warrantless arrest to enforce federal law, we said that “the lawfulness of the arrest without warrant is to be determined by reference to state law.” Id., at 305. Under §6, an Arizona officer may be authorized to make an arrest that a federal officer may not be authorized to make under §1357(a)(2). As Miller makes clear, that fact alone does not render arrests by state or local officers pursuant to §6 unlawful. Nor does it manifest a clear congressional intent to displace the exer- cise of state police powers that are brought to bear in aid of federal law	To address pressing issues related to the large number of aliens within its borders who do not have a lawful right to be in this country, the State of Arizona in 20 enacted a statute called the Support Our Law Enforcement and Safe Neighborhoods Act. The law is often referred to as S. B. 70, the version introduced in the state senate. See also H. 2162 (20) (amending S. 70). Its stated pur pose is to “discourage and deter the unlawful entry and presence of aliens and economic activity by persons unlaw fully present in the United States.” Note following Ariz. Rev. Stat. Ann. (West 2012). The law’s provi sions establish an official state policy of “attrition through enforcement.” The question before the ourt is whether federal law preempts and renders invalid four separate provisions of the state law. I The United States filed this suit against Arizona, seek ing to enjoin S. B. 70 as preempted. Four provisions of the law are at issue here. Two create new state offenses. Section 3 makes failure to comply with federal alien registration requirements a state misdemeanor. Ariz. 2 ARIZONA v. UNITED STATES Opinion of the ourt Rev. Stat. Ann. Section 5, in relevant part, makes it a misdemeanor for an unauthor ized alien to seek or engage in work in the State; this provision is referred to as See Two other provisions give specific arrest authority and inves- tigative duties with respect to certain aliens to state and local law enforcement officers. Section 6 authorizes offic ers to arrest without a warrant a person “the officer has probable cause to believe has committed any public offense that makes the person removable from the United States.” Section 2(B) provides that offic ers who conduct a stop, detention, or arrest must in some circumstances make efforts to verify the person’s immi gration status with the Federal Government. See 51(B) (West 2012). The United States District ourt for the District of Arizona issued a preliminary injunction preventing the four provisions at issue from taking effect. 703 F. Supp. 2d 980, 08 (20). The ourt of Appeals for the Ninth ircuit affirmed. It agreed that the United States had established a likelihood of success on its preemption claims. The ourt of Appeals was unan imous in its conclusion that and 5() were likely preempted. Judge Bea dissented from the decision to uphold the preliminary injunction against and 6. This ourt granted certiorari to resolve important ques tions concerning the interaction of state and federal power with respect to the law of immigration and alien status. 5 U. S. II A The Government of the United States has broad, un doubted power over the subject of immigration and the status of See ; see generally S. Legomsky & Rodríguez, Immigration ite as: 5 U. S. (2012) 3 Opinion of the ourt and Refugee Law and Policy –132 This authority rests, in part, on the National Government’s constitutional power to “establish an uniform Rule of Nat- uralization,” U. S. onst., Art. I, cl. 4, and its inher- ent power as sovereign to control and conduct relations with foreign nations, see at (citing United (1936)). The federal power to determine immigration policy is well settled. Immigration policy can affect trade, invest ment, tourism, and diplomatic relations for the entire Nation, as well as the perceptions and expectations of aliens in this country who seek the full protection of its laws. See, e.g., Brief for Argentina et al. as Amici uriae; see also – (1952). Perceived mistreatment of aliens in the United States may lead to harmful reciprocal treatment of American citizens abroad. See Brief for Madeleine K. Albright et al. as Amici uriae 24–30. It is fundamental that foreign countries concerned about the status, safety, and security of their nationals in the United States must be able to confer and communicate on this subject with one national sovereign, not the 50 sepa rate States. See hy 2– 280 (1876); see also The Federalist No. 3, p. 39 (J. Jay) (observing that federal power would be necessary in part because “bordering States under the impulse of sudden irritation, and a quick sense of appar ent interest or injury” might take action that would un dermine foreign relations). This ourt has reaffirmed that “[o]ne of the most important and delicate of all interna tional relationships has to do with the protection of the just rights of a country’s own nationals when those na tionals are in another country.” v. Davidowitz, 312 U.S. 52, 64 Federal governance of immigration and alien status is 4 ARIZONA v. UNITED STATES Opinion of the ourt extensive and complex. ongress has specified catego ries of aliens who may not be admitted to the United States. See 8 U.S. Unlawful entry and unlawful reentry into the country are federal offenses. 1326. Once here, aliens are required to register with the Federal Government and to carry proof of status on their person. See Failure to do so is a federal misdemeanor. 1306(a). Federal law also au thorizes States to deny noncitizens a range of public bene fits, and it imposes sanctions on employers who hire unauthorized workers, ongress has specified which aliens may be removed from the United States and the procedures for doing so. Aliens may be removed if they were inadmissible at the time of entry, have been convicted of certain crimes, or meet other criteria set by federal law. See Re moval is a civil, not criminal, matter. A principal feature of the removal system is the broad discretion exercised by immigration officials. See Brief for Former ommission ers of the United States Immigration and Naturalization Service as Amici uriae 8–13 (hereinafter Brief for For mer INS ommissioners). Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all. If removal proceedings commence, aliens may seek asylum and other discretionary relief allowing them to remain in the country or at least to leave without formal removal. See see also, e.g., (asylum), 1229b (cancellation of removal), 1229c (volun tary departure). Discretion in the enforcement of immigration law em braces immediate human concerns. Unauthorized work ers trying to support their families, for example, likely pose less danger than alien smugglers or aliens who com mit a serious crime. The equities of an individual case may turn on many factors, including whether the alien has children born in the United States, long ties to the ite as: 5 U. S. (2012) 5 Opinion of the ourt community, or a record of distinguished military service. Some discretionary decisions involve policy choices that bear on this Nation’s international relations. Returning an alien to his own country may be deemed inappropriate even where he has committed a removable offense or fails to meet the criteria for admission. The foreign state may be mired in civil war, complicit in political persecution, or enduring conditions that create a real risk that the alien or his family will be harmed upon return. The dynamic nature of relations with other countries requires the Exec utive Branch to ensure that enforcement policies are con sistent with this Nation’s foreign policy with respect to these and other realities. Agencies in the Department of Homeland Security play a major role in enforcing the country’s immigration laws. United States ustoms and Border Protection (BP) is re- sponsible for determining the admissibility of aliens and securing the country’s borders. See of Homeland Security, Office of Immigration Statistics, Immigration Enforcement : 20, p. 1 In 20, BP’s Border Patrol apprehended almost half a million people. Immigration and ustoms Enforcement (IE), a second agency, “conducts criminal investigations involving the enforcement of immigration-related statutes.” at 2. IE also operates the Law Enforcement Support en ter. LES, as the enter is known, provides immigra- tion status information to federal, state, and local officials around the clock. See App. 91. IE officers are respon sible “for the identification, apprehension, and removal of illegal aliens from the United States.” Immigration En forcement Hundreds of thousands of aliens are removed by the Federal Government every year. See (reporting there were 387,2 removals, and 476,405 returns without a removal order, in 20). 6 ARIZONA v. UNITED STATES Opinion of the ourt B The pervasiveness of federal regulation does not di minish the importance of immigration policy to the States. Arizona bears many of the consequences of unlawful im migration. Hundreds of thousands of deportable aliens are apprehended in Arizona each year. of Homeland Security, Office of Immigration Statistics, 20 Yearbook of Immigration Statistics 93 (Table 35). Unauthor ized aliens who remain in the State comprise, by one es- timate, almost six percent of the population. See Passel & ohn, Pew Hispanic enter, U. S. Unauthorized Im- migration Flows Are Down Sharply Since Mid-Decade 3 (20). And in the State’s most populous county, these aliens are reported to be responsible for a disproportionate share of serious crime. See, e.g., amarota & Vaughan, enter for Immigration Studies, Immigration and rime: Assessing a onflicted Situation 16 (Table 3) (esti mating that unauthorized aliens comprise 8.9% of the population and are responsible for 21.8% of the felonies in Maricopa ounty, which includes Phoenix). Statistics alone do not capture the full extent of Arizo na’s concerns. Accounts in the record suggest there is an “epidemic of crime, safety risks, serious property damage, and environmental problems” associated with the influx of illegal migration across private land near the Mexican border. Brief for Petitioners 6. Phoenix is a major city of the United States, yet signs along an interstate highway 30 miles to the south warn the public to stay away. One reads, “DANGER—PUBLI WARNING—TRAVEL NOT REOMMENDED / Active Drug and Human Smuggling Area / Visitors May Encounter Armed riminals and Smuggling Vehicles Traveling at High Rates of Speed.” App. 170; see also Brief for Petitioners 5–6. The problems posed to the State by illegal immigration must not be underestimated. These concerns are the background for the formal legal ite as: 5 U. S. (2012) 7 Opinion of the ourt analysis that follows. The issue is whether, under pre emption principles, federal law permits Arizona to imple ment the state-law provisions in dispute. III Federalism, central to the constitutional design, adopts the principle that both the National and State Govern ments have elements of sovereignty the other is bound to respect. See (1991); U. S. Term Limits, 838 (KENNEDY, J., concurring). From the existence of two sovereigns follows the possibility that laws can be in conflict or at cross-purposes. The Supremacy lause provides a clear rule that federal law “shall be the su preme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the onstitution or Laws of any State to the ontrary notwithstanding.” Art. VI, cl. 2. Under this principle, ongress has the power to preempt state law. See ; Gibbons v. Ogden, 2–211 There is no doubt that ongress may withdraw specified powers from the States by enacting a statute containing an express preemption provision. See, e.g., hamber of ommerce of United States of America v. 563 U.S. (slip op., ). State law must also give way to federal law in at least two other circumstances. First, the States are precluded from regulating conduct in a field that ongress, acting within its proper authority, has determined must be regu lated by its exclusive governance. See The intent to displace state law altogether can be inferred from a framework of regulation “so pervasive that ongress left no room for the States to supplement it” or where there is a “federal interest so dominant that the 8 ARIZONA v. UNITED STATES Opinion of the ourt federal system will be assumed to preclude enforcement of state laws on the same subject.” ; see Second, state laws are preempted when they conflict with federal law. 72. This includes cases where “compliance with both federal and state regulations is a physical impossibility,” Florida Lime & Avocado Growers, 1–143 (1963), and those instances where the challenged state law “stands as an obstacle to the accomplishment and execu tion of the full purposes and objectives of ongress,” ; see also 73 (“What is a sufficient obstacle is a matter of judgment, to be informed by examining the federal statute as a whole and identifying its purpose and intended effects”). In preemption analysis, courts should assume that “the historic police powers of the States” are not superseded “unless that was the clear and manifest purpose of on gress.” 30; see v. Levine, 5 U.S. 5, 5 The four challenged provisions of the state law each must be examined under these preemption principles. IV A Section 3 Section 3 of S. B. 70 creates a new state misde- meanor. It forbids the “willful failure to complete or carry an alien registration document in violation of 8 United States ode section 1304(e) or 1306(a).” Ariz. Rev. Stat. Ann. 1509(A) In effect, adds a state-law penalty for conduct proscribed by federal law. The United States contends that this state enforcement mechanism intrudes on the field of alien registration, a field in which ongress has left no room for States to ite as: 5 U. S. (2012) 9 Opinion of the ourt regulate. See Brief for United States 27, 31. The ourt discussed federal alien-registration require ments in v. Davidowitz, In 1940, as international conflict spread, ongress added to federal immigration law a “complete system for alien registra tion.” The new federal law struck a careful balance. It punished an alien’s willful failure to register but did not require aliens to carry identification cards. There were also limits on the sharing of registration rec ords and fingerprints. The ourt found that ongress intended the federal plan for registration to be a “single integrated and all-embracing system.” Because this “complete scheme for the registration of aliens” touched on foreign relations, it did not allow the States to “curtail or complement” federal law or to “enforce addi tional or auxiliary regulations.” at 66–. As a con sequence, the ourt ruled that Pennsylvania could not enforce its own alien-registration program. See The present regime of federal regulation is not identi cal to the statutory framework considered in but it remains comprehensive. Federal law now includes a requirement that aliens carry proof of registration. 8 U.S. Other aspects, however, have stayed the same. Aliens who remain in the country for more than 30 days must apply for registration and be fingerprinted. ompare with (1940 ed.). Detailed information is required, and any change of address has to be reported to the Federal Government. ompare 1(a) (2006 ed.), with 456 (1940 ed.). The statute continues to provide penalties for the willful failure to register. ompare (2006 ed.), with § (1940 ed.). The framework enacted by ongress leads to the conclu sion here, as it did in that the Federal Government has occupied the field of alien registration. See American Ins. ARIZONA v. UNITED STATES Opinion of the ourt (characterizing as a field preemption case); Pennsyl- ; see also Dinh, Reassessing the Law of Preemption, 88 Geo. L. J. 2085, 2098–2099, 27 The federal statu tory directives provide a full set of standards governing alien registration, including the punishment for noncom pliance. It was designed as a “ ‘harmonious whole.’ ” Where ongress occupies an entire field, as it has in the field of alien registration, even com plementary state regulation is impermissible. Field pre emption reflects a congressional decision to foreclose any state regulation in the area, even if it is parallel to fed- eral standards. See Silkwood v. Kerr-McGee orp., 464 U.S. 238, 249 Federal law makes a single sovereign responsible for maintaining a comprehensive and unified system to keep track of aliens within the Nation’s borders. If of the Arizona statute were valid, every State could give itself independent authority to prosecute federal registration violations, “diminish[ing] the [Federal Government]’s control over enforcement” and “detract[ing] from the ‘integrated scheme of regulation’ created by ongress.” Wisconsin of 288–289 (1986). Even if a State may make violation of federal law a crime in some instances, it cannot do so in a field (like the field of alien registration) that has been occupied by federal law. See 730– 731, 733 (1949); see also In re Loney, 134 U.S. 375– 376 (1890) (States may not impose their own punishment for perjury in federal courts). Arizona contends that can survive preemption be cause the provision has the same aim as federal law and adopts its substantive standards. This argument not only ignores the basic premise of field preemption—that States may not enter, in any respect, an area the Federal Gov ernment has reserved for itself—but also is unpersuasive ite as: 5 U. S. (2012) 11 Opinion of the ourt on its own terms. Permitting the State to impose its own penalties for the federal offenses here would conflict with the careful framework ongress adopted. f. Buckman 347– (States may not impose their own punishment for fraud on the Food and Drug Administration); Wisconsin 88 (States may not impose their own punishment for repeat violations of the National Labor Relations Act). Were to come into force, the State would have the power to bring criminal charges against individuals for violating a federal law even in circum stances where federal officials in charge of the comprehen sive scheme determine that prosecution would frustrate federal policies. There is a further intrusion upon the federal scheme. Even where federal authorities believe prosecution is ap- propriate, there is an inconsistency between and fed- eral law with respect to penalties. Under federal law, the failure to carry registration papers is a misdemeanor that may be punished by a fine, imprisonment, or a term of probation. See 8 U.S. (2006 ed.); 18 U.S. 561. State law, by contrast, rules out probation as a possible sentence (and also eliminates the possibility of a pardon). See Ariz. Rev. Stat. Ann. (D) This state framework of sanctions creates a conflict with the plan ongress put in place. See Wiscon- sin 86 (“[]onflict is imminent whenever two separate remedies are brought to bear on the same activity” (internal quotation marks omitted)). These specific conflicts between state and federal law simply underscore the reason for field preemption. As it did in the ourt now concludes that, with respect to the subject of alien registration, ongress intended to preclude States from “complement[ing] the federal law, or enforc[ing] additional or auxiliary regulations.” 312 U. S., at 66–. Section 3 is preempted by federal law. 12 ARIZONA v. UNITED STATES Opinion of the ourt B Section 5() Unlike which replicates federal statutory require ments, enacts a state criminal prohibition where no federal counterpart exists. The provision makes it a state misdemeanor for “an unauthorized alien to knowingly ap- ply for work, solicit work in a public place or perform work as an employee or independent contractor” in Ari zona. –2928() Violations can be punished by a $2,500 fine and incarcera tion for up to six months. See see also (West 20); 13–802(A); 13–902(A)(5). The United States contends that the provision upsets the bal- ance struck by the Immigration Reform and ontrol Act of 1986 (IRA) and must be preempted as an obstacle to the federal plan of regulation and control. When there was no comprehensive federal program regulating the employment of unauthorized aliens, this ourt found that a State had authority to pass its own laws on the subject. In 1971, for example, alifornia passed a law imposing civil penalties on the employment of aliens who were “not entitled to lawful residence in the United States if such employment would have an adverse effect on lawful resident workers.” 1971 al. Stats. ch. 14, The law was upheld against a preemption challenge in De De anas recognized that “States possess broad authority under their police powers to regulate the employment relationship to protect workers within the State.” at 356. At that point, however, the Federal Government had expressed no more than “a peripheral concern with [the] employment of illegal entrants.” 60; see 563 U. S., at (slip op., ). urrent federal law is substantially different from the regime that prevailed when De anas was decided. on gress enacted IRA as a comprehensive framework for ite as: 5 U. S. (2012) 13 Opinion of the ourt “combating the employment of illegal ” Hoffman Plastic ompounds, The law makes it illegal for employers to know ingly hire, recruit, refer, or continue to employ unauthorized workers. See 8 U.S. (a)(2). It also requires every employer to verify the employment authori zation status of prospective employees. See (1)(B), (b); 8 FR (2012). These requirements are enforced through criminal penalties and an escalat ing series of civil penalties tied to the number of times an employer has violated the provisions. See 8 U.S. (f); 8 FR §274a. This comprehensive framework does not impose federal criminal sanctions on the employee side (i.e., penalties on aliens who seek or engage in unauthorized work). Under federal law some civil penalties are imposed instead. With certain exceptions, aliens who accept unlawful employ ment are not eligible to have their status adjusted to that of a lawful permanent resident. See 8 U.S. (c)(8). Aliens also may be removed from the country for having engaged in unauthorized work. See (e). In addition to specify ing these civil consequences, federal law makes it a crime for unauthorized workers to obtain employment through fraudulent means. See 18 U.S. ongress has made clear, however, that any information employees submit to indicate their work status “may not be used” for purposes other than prosecution under specified federal criminal statutes for fraud, perjury, and related conduct. See 8 U.S. (d)(2)(F)–(G). The legislative background of IRA underscores the fact that ongress made a deliberate choice not to impose crim inal penalties on aliens who seek, or engage in, unauthor ized employment. A commission established by ongress to study immigration policy and to make recommen dations concluded these penalties would be “unnecessary 14 ARIZONA v. UNITED STATES Opinion of the ourt and unworkable.” U. S. Immigration Policy and the Na tional Interest: The Final Report and Recommendations of the Select ommission on Immigration and Refugee Policy with Supplemental Views by ommissioners –66 (1981); see Pub. L. 95–412, Proposals to make unauthorized work a criminal offense were debated and discussed during the long process of drafting IRA. See Brief for Service Employees International Union et al. as Amici uriae 9–12. But ongress rejected them. See, e.g., 119 ong. Rec. 14184 (1973) (statement of Rep. Dennis). In the end, IRA’s framework reflects a considered judg ment that making criminals out of aliens engaged in unauthorized work—aliens who already face the possibil ity of employer exploitation because of their removable status—would be inconsistent with federal policy and ob- jectives. See, e.g., Hearings before the Subcommittee No. 1 of the House ommittee on the Judiciary, 92d ong., 1st Sess., pt. 3, pp. 919–920 (statement of Rep. Rodino, the eventual sponsor of IRA in the House of Representatives). IRA’s express preemption provision, which in most instances bars States from imposing penalties on employ ers of unauthorized aliens, is silent about whether addi tional penalties may be imposed against the employees themselves. See 8 U.S. at – (slip op., at 1–2). But the existence of an “ex press pre-emption provisio[n] does not bar the ordinary working of conflict pre-emption principles” or impose a “special burden” that would make it more difficult to establish the preemption of laws falling outside the clause. – 872 ; see The ordinary principles of preemption include the well settled proposition that a state law is preempted where it “stands as an obstacle to the accomplishment and exe ite as: 5 U. S. (2012) 15 Opinion of the ourt cution of the full purposes and objectives of ongress.” Under of S. B. 70, Arizona law would interfere with the careful balance struck by ongress with respect to unauthorized employment of Although attempts to achieve one of the same goals as federal law—the deterrence of unlawful employment—it involves a conflict in the method of en forcement. The ourt has recognized that a “[c]onflict in technique can be fully as disruptive to the system on gress enacted as conflict in overt policy.” Motor oach The correct instruction to draw from the text, structure, and history of IRA is that ongress decided it would be inap propriate to impose criminal penalties on aliens who seek or engage in unauthorized employment. It follows that a state law to the contrary is an obstacle to the regulatory system ongress chose. See Puerto Rico of on- sumer (1988) (“Where a comprehensive federal scheme intention ally leaves a portion of the regulated field without con trols, then the pre-emptive inference can be drawn—not from federal inaction alone, but from inaction joined with action”). Section 5() is preempted by federal law. Section 6 Section 6 of S. B. 70 provides that a state officer, “without a warrant, may arrest a person if the officer has probable cause to believe [the person] has committed any public offense that makes [him] removable from the United States.” –3883(A)(5) The United States argues that arrests authorized by this statute would be an obstacle to the removal system ongress created. As a general rule, it is not a crime for a removable alien to remain present in the United States. See INS v. Lopez- 16 468 U.S. 32, 38 If the police stop someone based on nothing more than possible removabil ity, the usual predicate for an arrest is absent. When an alien is suspected of being removable, a federal official issues an administrative document called a Notice to Ap pear. See 8 U.S. (a) (2012). The form does not authorize an arrest. Instead, it gives the alien information about the proceedings, including the time and date of the removal hearing. See 8 U.S. If an alien fails to appear, an in absentia order may direct removal. The federal statutory structure instructs when it is ap propriate to arrest an alien during the removal process. For example, the Attorney General can exercise discretion to issue a warrant for an alien’s arrest and detention “pending a decision on whether the alien is to be removed from the United States.” 8 U.S. see Memo randum from John Morton, Director, IE, to All Field Office Directors et al., Exercising Prosecutorial Discretion onsistent with the ivil Immigration Enforcement Prior ities of the Agency for the Apprehension, Detention, and Removal of Aliens (hereinafter IE Memorandum) (describing factors informing this and re lated decisions). And if an alien is ordered removed after a hearing, the Attorney General will issue a warrant. See (a)(1). In both instances, the warrants are executed by federal officers who have received training in the enforcement of immigration law. See5(e)(3). If no federal warrant has been issued, those officers have more limited authority. See 8 U.S. They may arrest an alien for being “in the United States in violation of any [immigration] law or regula- tion,” for example, but only where the alien “is likely to escape before a warrant can be obtained.” Section 6 attempts to provide state officers even greater authority to arrest aliens on the basis of possible remova ite as: 5 U. S. (2012) 17 Opinion of the ourt bility than ongress has given to trained federal immi- gration officers. Under state law, officers who believe an alien is removable by reason of some “public offense” would have the power to conduct an arrest on that basis regardless of whether a federal warrant has issued or the alien is likely to escape. This state authority could be exercised without any input from the Federal Government about whether an arrest is warranted in a particular case. This would allow the State to achieve its own immigra tion policy. The result could be unnecessary harassment of some aliens (for instance, a veteran, college student, or someone assisting with a criminal investigation) whom federal officials determine should not be removed. This is not the system ongress created. Federal law specifies limited circumstances in which state officers may perform the functions of an immigration officer. A princi pal example is when the Attorney General has granted that authority to specific officers in a formal agreement with a state or local government. See see also §13(a)() (authority may be extended in the event of an “imminent mass influx of aliens off the coast of the United States”); (authority to arrest in specific circum stance after consultation with the Federal Government); (authority to arrest for bringing in and harboring certain aliens). Officers covered by these agreements are subject to the Attorney General’s direction and super vision. There are significant complexities involved in enforcing federal immigration law, including the determination whether a person is removable. See Padilla v. Kentucky, 9 U.S. – (20) (ALITO, J., concurring in judgment) (slip op., –7). As a result, the agreements reached with the Attorney General must contain written certification that officers have received adequate training to carry out the duties of an immigra tion officer. See cf. 8 FR §§.5(c) (ar- rest power contingent on training),1(g) (defining the 18 ARIZONA v. UNITED STATES Opinion of the ourt training). By authorizing state officers to decide whether an alien should be detained for being removable, violates the principle that the removal process is entrusted to the discretion of the Federal Government. See, e.g., Reno v. American-Arab Anti-Discrimination omm., 483–484 ; see also Brief for Former INS ommis sioners 8–13. A decision on removability requires a de termination whether it is appropriate to allow a foreign national to continue living in the United States. Decisions of this nature touch on foreign relations and must be made with one voice. See (“Removal deci sions, including the selection of a removed alien’s destina tion, may implicate [the Nation’s] relations with foreign powers and require consideration of changing political and economic circumstances” (internal quotation marks omit ted)); see also (“Policies pertaining to the entry of aliens and their right to remain here are entrusted exclusively to ongress”); (“The author ity to control immigration—to admit or exclude aliens—is vested solely in the Federal Government”). In defense of Arizona notes a federal statute permit ting state officers to “cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States.” 8 U.S. ()(B). There may be some ambiguity as to what constitutes cooperation under the federal law; but no coherent understanding of the term would incorporate the unilateral decision of state officers to arrest an alien for being removable absent any request, approval, or other instruction from the Federal Government. The Depart ment of Homeland Security gives examples of what would constitute cooperation under federal law. These include situations where States participate in a joint task force ite as: 5 U. S. (2012) 19 Opinion of the ourt with federal officers, provide operational support in exe cuting a warrant, or allow federal immigration officials to gain access to detainees held in state facilities. See of Homeland Security, Guidance on State and Local Governments’ Assistance in Immigration Enforcement and Related Matters 13–14 online at http:// www.dhs.gov/files/resources/immigration.shtm (all Inter net materials as visited June 21, 2012, and available in lerk of ourt’s case file). State officials can also assist the Federal Government by responding to requests for information about when an alien will be released from their custody. See But the unilateral state action to detain authorized by goes far beyond these measures, defeating any need for real cooperation. ongress has put in place a system in which state offic ers may not make warrantless arrests of aliens based on possible removability except in specific, limited circum stances. By nonetheless authorizing state and local offi- cers to engage in these enforcement activities as a general matter, creates an obstacle to the full purposes and objectives of ongress. See Sec tion 6 is preempted by federal law. D Section 2(B) Section 2(B) of S. B. 70 requires state officers to make a “reasonable attempt to determine the immigration status” of any person they stop, detain, or arrest on some other legitimate basis if “reasonable suspicion exists that the person is an alien and is unlawfully present in the United States.” Ariz. Rev. Stat. Ann. (B) (West 2012). The law also provides that “[a]ny person who is arrested shall have the person’s immigration status de termined before the person is released.” The accepted way to perform these status checks is to contact IE, which maintains a database of immigration records. 20 ARIZONA v. UNITED STATES Opinion of the ourt Three limits are built into the state provision. First, a detainee is presumed not to be an alien unlawfully present in the United States if he or she provides a valid Arizona driver’s license or similar identification. Second, officers “may not consider race, color or national origin except to the extent permitted by the United States [and] Ari zona onstitution[s].” Third, the provisions must be “implemented in a manner consistent with federal law regulating immigration, protecting the civil rights of all persons and respecting the privileges and immunities of United States citizens.” (L) (West 2012). The United States and its amici contend that, even with these limits, the State’s verification requirements pose an obstacle to the framework ongress put in place. The first concern is the mandatory nature of the status checks. The second is the possibility of prolonged detention while the checks are being performed. 1 onsultation between federal and state officials is an important feature of the immigration system. ongress has made clear that no formal agreement or special train ing needs to be in place for state officers to “communicate with the [Federal Government] regarding the immigration status of any individual, including reporting knowledge that a particular alien is not lawfully present in the United States.” 8 U.S. ()(A). And ongress has obligated IE to respond to any request made by state officials for verification of a person’s citizenship or im- migration status. See see also (requiring a system for determining whether individuals arrested for aggravated felonies are aliens). IE’s Law Enforcement Support enter operates “24 hours a day, seven days a week, 3 days a year” and provides, among other things, “immigration status, identity information and real-time assistance to local, state and federal law ite as: 5 U. S. (2012) 21 Opinion of the ourt enforcement agencies.” IE, Fact Sheet: Law Enforce ment Support enter (May 29, 2012), online at http:// www.ice.gov/news/library/factsheets/lesc.htm. LES re sponded to more than one million requests for information in 2009 alone. App. 93. The United States argues that making status verifica tion mandatory interferes with the federal immigration scheme. It is true that does not allow state officers to consider federal enforcement priorities in deciding whether to contact IE about someone they have de tained. See Brief for United States 47–50. In other words, the officers must make an inquiry even in cases where it seems unlikely that the Attorney General would have the alien removed. This might be the case, for example, when an alien is an elderly veteran with significant and longstanding ties to the community. See IE Memo randum 4–5 (mentioning these factors as relevant). ongress has done nothing to suggest it is inappropriate to communicate with IE in these situations, however. Indeed, it has encouraged the sharing of information about possible immigration violations. See 8 U.S. ()(A). A federal statute regulating the public benefits provided to qualified aliens in fact instructs that “no State or local government entity may be prohibited, or in any way restricted, from sending to or receiving from [IE] information regarding the immigration status, lawful or unlawful, of an alien in the United States.” The federal scheme thus leaves room for a policy requiring state officials to contact IE as a routine matter. f. 563 U. S., at – (slip op., 3–24) (reject ing argument that federal law preempted Arizona’s re quirement that employers determine whether employees were eligible to work through the federal E-Verify system where the Federal Government had encouraged its use). 22 ARIZONA v. UNITED STATES Opinion of the ourt 2 Some who support the challenge to argue that, in practice, state officers will be required to delay the release of some detainees for no reason other than to verify their immigration status. See, e.g., Brief for Former Arizona Attorney General Terry Goddard et al. as Amici uriae 37, n. 49. Detaining individuals solely to verify their immi gration status would raise constitutional concerns. See, e.g., ; Illinois v. aballes, (“A seizure that is justified solely by the interest in issuing a warning ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that mission”). And it would disrupt the federal framework to put state officers in the position of holding aliens in custody for possible unlawful presence without federal direction and supervision. f. Part IV–, (concluding that Ari zona may not authorize warrantless arrests on the basis of removability). The program put in place by ongress does not allow state or local officers to adopt this enforcement mechanism. But could be read to avoid these concerns. To take one example, a person might be stopped for jaywalking in Tucson and be unable to produce identification. The first sentence of instructs officers to make a “reasonable” attempt to verify his immigration status with IE if there is reasonable suspicion that his presence in the United States is unlawful. The state courts may conclude that, unless the person continues to be suspected of some crime for which he may be detained by state officers, it would not be reasonable to prolong the stop for the immigration inquiry. See Reply Brief for Petitioners 12, n. 4 (“[Section 2(B)] does not require the verification be completed during the stop or detention if that is not reasonable or practica ble”); cf. 1 (finding no Fourth Amendment violation where questioning about ite as: 5 U. S. (2012) 23 Opinion of the ourt immigration status did not prolong a stop). To take another example, a person might be held pend ing release on a charge of driving under the influence of alcohol. As this goes beyond a mere stop, the arrestee (unlike the jaywalker) would appear to be subject to the categorical requirement in the second sentence of that “[a]ny person who is arrested shall have the person’s immigration status determined before [he] is released.” State courts may read this as an instruction to initiate a status check every time someone is arrested, or in some subset of those cases, rather than as a command to hold the person until the check is complete no matter the cir cumstances. Even if the law is read as an instruction to complete a check while the person is in custody, moreover, it is not clear at this stage and on this record that the verification process would result in prolonged detention. However the law is interpreted, if only requires state officers to conduct a status check during the course of an authorized, lawful detention or after a detainee has been released, the provision likely would survive pre- emption—at least absent some showing that it has other consequences that are adverse to federal law and its objec tives. There is no need in this case to address whether reasonable suspicion of illegal entry or another immigra tion crime would be a legitimate basis for prolonging a detention, or whether this too would be preempted by federal law. See, e.g., United States v. Di Re, 332 U.S. 581, (authority of state officers to make arrests for federal crimes is, absent federal statutory instruction, a matter of state law); –476 (A9 1983) (concluding that Arizona officers have authority to enforce the criminal provisions of federal immigration law), overruled on other grounds in Hodgers- 199 F.3d 37 The nature and timing of this case counsel caution in evaluating the validity of The Federal Government 24 ARIZONA v. UNITED STATES Opinion of the ourt has brought suit against a sovereign State to challenge the provision even before the law has gone into effect. There is a basic uncertainty about what the law means and how it will be enforced. At this stage, without the benefit of a definitive interpretation from the state courts, it would be inappropriate to assume will be construed in a way that creates a conflict with federal law. f. (“So far as statutes fairly may be construed in such a way as to avoid doubtful con stitutional questions they should be so construed; and it is to be presumed that state laws will be construed in that way by the state courts” (citation omitted)). As a result, the United States cannot prevail in its current challenge. See Huron Portland ement o. v. Detroit, 446 (1960) (“To hold otherwise would be to ignore the teaching of this ourt’s decisions which enjoin seeking out conflicts between state and federal regulation where none clearly exists”). This opinion does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect. V Immigration policy shapes the destiny of the Nation. On May 24, 2012, at one of this Nation’s most distin guished museums of history, a dozen immigrants stood before the tattered flag that inspired Francis Scott Key to write the National Anthem. There they took the oath to become American citizens. The Smithsonian, News Release, Smithsonian itizenship eremony Welcomes a Dozen New Americans (May 24, 2012), online at http://newsdesk.si.edu/releases. These naturalization cere- monies bring together men and women of different ori gins who now share a common destiny. They swear a common oath to renounce fidelity to foreign princes, to defend the onstitution, and to bear arms on behalf of the country when required by law. 8 FR 37.1(a) (2012). ite as: 5 U. S. (2012) 25 Opinion of the ourt The history of the United States is in part made of the stories, talents, and lasting contributions of those who crossed oceans and deserts to come here. The National Government has significant power to regulate immigration. With power comes responsibility, and the sound exercise of national power over immigration depends on the Nation’s meeting its responsibility to base its laws on a political will informed by searching, thought ful, rational civic discourse. Arizona may have under standable frustrations with the problems caused by illegal immigration while that process continues, but the State may not pursue policies that undermine federal law. * * * The United States has established that 5(), and 6 of S. B. 70 are preempted. It was improper, however, to enjoin before the state courts had an opportunity to construe it and without some showing that enforcement of the provision in fact conflicts with federal immigration law and its objectives. The judgment of the ourt of Appeals for the Ninth ircuit is affirmed in part and reversed in part. The case is remanded for further proceedings consistent with this opinion. It is so ordered. JUSTIE KAGAN took no part in the consideration or decision of this case. ite as: 5 U. S. (2012) 1 Opinion of SALIA, J. SUPREME OURT OF THE UNITED STATES No. 11–182 ARIZONA, ET AL., PETITIONERS v. UNITED STATES ON WRIT OF ERTIORARI TO THE UNITED STATES OURT OF APPEALS FOR THE NINTH IRUIT [June 25, 2012] JUSTIE SALIA, concurring in part and dissenting in part. The United States is an indivisible “Union of sovereign States.” Hinderlider v. La Plata River & herry reek Ditch o., 4 Today’s opinion, ap proving virtually all of the Ninth ircuit’s injunction against enforcement of the four challenged provisions of Arizona’s law, deprives States of what most would con- sider the defining characteristic of sovereignty: the power to exclude from the sovereign’s territory people who have no right to be there. Neither the onstitution itself nor even any law passed by ongress supports this result. I dissent. I As a sovereign, Arizona has the inherent power to ex clude persons from its territory, subject only to those limitations expressed in the onstitution or constitution ally imposed by ongress. That power to exclude has long been recognized as inherent in sovereignty. Emer de Vattel’s seminal 1758 treatise on the Law of Nations stated: “The sovereign may forbid the entrance of his territory either to foreigners in general, or in particular cases, or to certain persons, or for certain particular pur- poses, according as he may think it advantageous to 2 ARIZONA v. UNITED STATES Opinion of SALIA, J. the state. There is nothing in all this, that does not flow from the rights of domain and sovereignty: every one is obliged to pay respect to the prohibition; and whoever dares violate it, incurs the penalty decreed to render it effectual.” The Law of Nations, bk. II, ch. VII, p. 309 See also I R. Phillimore, ommentaries upon Internation al Law, pt. III, ch. X, p. 233 (1854) (“It is a received maxim of International Law that, the Government of a State may prohibit the entrance of strangers into the country”).1 There is no doubt that “before the adoption of the consti tution of the United States” each State had the author- ity to “prevent [itself] from being burdened by an influx of persons.” Mayor of New 11 Pet. 2, 132– 133 (1837). And the onstitution did not strip the States of that authority. To the contrary, two of the onstitu tion’s provisions were designed to enable the States to prevent “the intrusion of obnoxious aliens through other States.” Letter from James Madison to Edmund Randolph (Aug. 27, 1782), in 1 The Writings of James Madison 226 (1900); accord, The Federalist No. pp. 269–271 (. Rossiter ed. 1961) (J. Madison). The Articles of onfeder —————— 1 Many of the 17th-, 18th-, and 19th-century commentators main tained that states should exclude foreigners only for good reason. Pufendorf, for example, maintained that states are generally expected to grant “permanent settlement to strangers who have been driven from their former home,” though acknowledging that, when faced with the prospect of mass immigration, “every state may decide after its own custom what privilege should be granted in such a situation.” 2 Of the Law of Nature and Nations, bk. III, ch. III, §, p. (. Oldfather & W. Oldfather eds. 1934). See generally leveland, Powers Inherent in Sovereignty: Indians, Aliens, Territories, and the Nineteenth entury Origins of Plenary Power over Foreign Affairs, 83–87 But the authority to exclude was universally accepted as inherent in sovereignty, whatever prudential limitations there might be on its exercise. ite as: 5 U. S. (2012) 3 Opinion of SALIA, J. ation had provided that “the free inhabitants of each of these States, paupers, vagabonds and fugitives from jus tice excepted, shall be entitled to all privileges and im munities of free citizens in the several States.” Articles of onfederation, Art. IV. This meant that an unwelcome alien could obtain all the rights of a citizen of one State simply by first becoming an inhabitant of another. To remedy this, the onstitution’s Privileges and Immunities lause provided that “[t]he itizens of each State shall be entitled to all Privileges and Immunities of itizens in the several States.” Art. IV, cl. 1 (emphasis added). But if one State had particularly lax citizenship standards, it might still serve as a gateway for the entry of “obnoxious aliens” into other States. This problem was solved “by authorizing the general government to establish a uniform rule of naturalization throughout the United States.” The Federalist No. 71; see Art. I, cl. 4. In other words, the naturalization power was given to on gress not to abrogate States’ power to exclude those they did not want, but to vindicate it. Two other provisions of the onstitution are an ac knowledgment of the States’ sovereign interest in protect ing their borders. Article I provides that “[n]o State shall, without the onsent of the ongress, lay any Imposts or Duties on Imports or Exports, except what may be abso lutely necessary for executing it’s inspection Laws.” Art. I, §, cl. 2 (emphasis added). This assumed what everyone assumed: that the States could exclude from their territory dangerous or unwholesome goods. A later portion of the same section provides that “[n]o State shall, without the onsent of ongress, engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.” Art. I, §, cl. 3 (emphasis added). This limits the States’ sovereignty (in a way not relevant here) but leaves intact their inherent power to protect their territory. Notwithstanding “[t]he myth of an era of unrestricted 4 ARIZONA v. UNITED STATES Opinion of SALIA, J. immigration” in the first 0 years of the Republic, the States enacted numerous laws restricting the immigra- tion of certain classes of aliens, including convicted crimi nals, indigents, persons with contagious diseases, and (in Southern States) freed blacks. Neuman, The Lost entury of American Immigration (1776–1875), 93 olum. L. Rev. 1833, 1835, 1841–1880 (1993). State laws not only pro vided for the removal of unwanted immigrants but also imposed penalties on unlawfully present aliens and those who aided their immigration.2 In fact, the controversy surrounding the Alien and Sedition Acts involved a debate over whether, under the onstitution, the States had exclusive authority to enact such immigration laws. riticism of the Sedition Act has become a prominent feature of our First Amendment jurisprudence, see, e.g., New York Times o. v. Sullivan, but one of the Alien Acts3 also aroused controversy at the time: “Be it enacted by the Senate and House of Representa tives of the United States of America in ongress as sembled, That it shall be lawful for the President of the United States at any time during the continuance of this act, to order all such aliens as he shall judge dangerous to the peace and safety of the United States, or shall have reasonable grounds to suspect are concerned in any treasonable or secret machina tions against the government thereof, to depart out of the territory of the United States” An Act con cerning Aliens, 570–571. —————— 2 E.g., Va. ode Tit. 54, ch. 198, 9 (1849) (“If a master of a vessel or other person, knowingly, import or bring into this state, from any place out of the United States, any person convicted of crime he shall be confined in jail for three months, and be fined one hundred dollars”). 3 There were two Alien Acts, one of which dealt only with enemy An Act respecting Alien Enemies, ite as: 5 U. S. (2012) 5 Opinion of SALIA, J. The Kentucky and Virginia Resolutions, written in denun ciation of these Acts, insisted that the power to exclude unwanted aliens rested solely in the States. Jefferson’s Kentucky Resolutions insisted “that alien friends are under the jurisdiction and protection of the laws of the state wherein they are [and] that no power over them has been delegated to the United States, nor prohibited to the individual states, distinct from their power over citi zens.” Kentucky Resolutions of 18, reprinted in J. Languages of Power: A Sourcebook of Early American onstitutional History 131 (1991). Madison’s Virginia Resolutions likewise contended that the Alien Act pur ported to give the President “a power nowhere delegated to the federal government.” Virginia Resolutions of 18, reprinted in Notably, moreover, the Federalist proponents of the Act defended it primarily on the ground that “[t]he removal of aliens is the usual preliminary of hostility” and could therefore be justified in exercise of the Federal Govern ment’s war powers. Massachussets Resolutions in Reply to Virginia, reprinted in In Mayor of New this ourt considered a New York statute that required the commander of any ship arriving in New York from abroad to disclose “the name, place of birth, and last legal settlement, age and occupation of all passengers with the intention of proceeding to the said city.” –131. After discussing the sovereign authority to regulate the en trance of foreigners described by De Vattel, the ourt said: “The power of New York to pass this law having undeniably existed at the formation of the constitu tion, the simply inquiry is, whether by that instru ment it was taken from the states, and granted to congress; for if it were not, it yet remains with them.” 6 ARIZONA v. UNITED STATES Opinion of SALIA, J. And the ourt held that it remains. II One would conclude from the foregoing that after the adoption of the onstitution there was some doubt about the power of the Federal Government to control immigra tion, but no doubt about the power of the States to do so. Since the founding era (though not immediately), doubt about the Federal Government’s power has disappeared. Indeed, primary responsibility for immigration policy has shifted from the States to the Federal Government. on gress exercised its power “[t]o establish an uniform Rule of Naturalization,” Art. I, cl. 4, very early on, see An Act to establish an uniform Rule of Naturalization, 1 Stat. 3. But with the fleeting exception of the Alien Act, ongress did not enact any legislation regulating immi gration for the better part of a century. In 1862, ongress passed “An Act to prohibit the ‘oolie Trade’ by American itizens in American Vessels,” which prohibited “procur ing [hinese nationals] to be disposed of, or sold, or transferred, for any term of years or for any time what ever, as servants or apprentices, or to be held to service or labor.” Then, in 1875, ongress amended that act to bar admission to hinese, Japanese, and other Asian immigrants who had “entered into a contract or agreement for a term of service within the United States, for lewd and immoral purposes.” An act supplementary to the acts in relation to immigration, ch. 141, And in 1882, ongress enacted the first general immi gration statute. See An act to regulate Immigration, 22 Stat. 214. Of course, it hardly bears mention that Federal immigration law is now extensive. I accept that as a valid exercise of federal power—not because of the Naturalization lause (it has no necessary connection to citizenship) but because it is an inherent attribute of sovereignty no less for the United States than ite as: 5 U. S. (2012) 7 Opinion of SALIA, J. for the States. As this ourt has said, it is an “ ‘accepted maxim of international law, that every sovereign nation has the power, as inherent in sovereignty, and essential to self-preservation, to forbid the entrance of foreigners within its dominions.’ ” Fong Yue ). That is why there was no need to set forth control of immigration as one of the enumer ated powers of ongress, although an acknowledgment of that power (as well as of the States’ similar power, subject to federal abridgment) was contained in Art. I, which provided that “[t]he Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the ongress prior to the Year one thousand eight hundred and eight” In light of the predominance of federal immigration restrictions in modern times, it is easy to lose sight of the States’ traditional role in regulating immigration—and to overlook their sovereign prerogative to do so. I accept as a given that State regulation is excluded by the onstitution when (1) it has been prohibited by a valid federal law, or (2) it conflicts with federal regulation—when, for example, it admits those whom federal regulation would exclude, or excludes those whom federal regulation would admit. Possibility (1) need not be considered here: there is no federal law prohibiting the States’ sovereign power to ex- clude (assuming federal authority to enact such a law). The mere existence of federal action in the immigration area—and the so-called field preemption arising from that action, upon which the ourt’s opinion so heavily relies, ante, at 9–11—cannot be regarded as such a prohibition. We are not talking here about a federal law prohibiting the States from regulating bubble-gum advertising, or even the construction of nuclear plants. We are talking about a federal law going to the core of state sovereignty: 8 ARIZONA v. UNITED STATES Opinion of SALIA, J. the power to exclude. Like elimination of the States’ other inherent sovereign power, immunity from suit, elimina- tion of the States’ sovereign power to exclude requires that “ongress unequivocally expres[s] its intent to abro gate,” Seminole Tribe of (1996) Implicit “field preemption” will not do. Nor can federal power over illegal immigration be deemed exclusive because of what the ourt’s opinion solicitously calls “foreign countries[ ’] concern[s] about the status, safety, and security of their nationals in the United States,” ante, The onstitution gives all those on our shores the protections of the Bill of Rights—but just as those rights are not expanded for foreign nationals be cause of their countries’ views (some countries, for exam ple, have recently discovered the death penalty to be barbaric), neither are the fundamental sovereign powers of the States abridged to accommodate foreign countries’ views. Even in its international relations, the Federal Government must live with the inconvenient fact that it is a Union of independent States, who have their own sover eign powers. This is not the first time it has found that a nuisance and a bother in the conduct of foreign policy. Four years ago, for example, the Government importuned us to interfere with thoroughly constitutional state judicial procedures in the criminal trial of foreign nationals be cause the international community, and even an opinion of the International ourt of Justice, disapproved them. See 2 U.S. 491 We rejected that request, as we should reject the Executive’s invocation of foreign-affairs considerations here. Though it may upset foreign powers—and even when the Federal Government desperately wants to avoid upsetting foreign powers—the States have the right to protect their borders against foreign nationals, just as they have the right to execute foreign nationals for murder. ite as: 5 U. S. (2012) 9 Opinion of SALIA, J. What this case comes down to, then, is whether the Arizona law conflicts with federal immigration law— whether it excludes those whom federal law would admit, or admits those whom federal law would exclude. It does not purport to do so. It applies only to aliens who neither possess a privilege to be present under federal law nor have been removed pursuant to the Federal Government’s inherent authority. I proceed to consider the challenged provisions in detail. “For any lawful stop, detention or arrest made by a law enforcement official in the enforcement of any other law or ordinance of a county, city or town or this state where reasonable suspicion exists that the per son is an alien and is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person, except if the determination may hinder or obstruct an investigation. Any person who is arrested shall have the person’s immigration status deter mined before the person is released.” S. B. 70, as amended, Ariz. Rev. Stat. Ann. (B) (West 2012). The Government has conceded that “even before Section 2 was enacted, state and local officers had state-law au thority to inquire of DHS [the Department of Homeland Security] about a suspect’s unlawful status and other- wise cooperate with federal immigration officers.” Brief for United States 47 (citing App. 62, 82); see also Brief for United States 48–49. That concession, in my view, ob- viates the need for further inquiry. The Government’s conflict-pre-emption claim calls on us “to determine whether, under the circumstances of this particular case, [the State’s] law stands as an obstacle to the accomplish ment and execution of the full purposes and objectives of ARIZONA v. UNITED STATES Opinion of SALIA, J. ongress.” v. Davidowitz, (emphasis added). It is impossible to make such a finding without a factual record concerning the manner in which Arizona is implementing these provisions—something the Government’s pre-enforcement challenge has pretermitted. “The fact that [a law] might operate unconstitutionally under some conceivable set of circumstances is insuf- ficient to render it wholly invalid, since we have not recognized an ‘overbreadth’ doctrine outside the limited context of the First Amendment.” United And on its face, merely tells state officials that they are authorized to do something that they were, by the Government’s con cession, already authorized to do. The ourt therefore properly rejects the Government’s challenge, recognizing that, “[a]t this stage, without the benefit of a definitive interpretation from the state courts, it would be inappropriate to assume will be construed in a way that creates a conflict with federal law.” Ante, at 23. Before reaching that conclusion, however, the ourt goes to great length to assuage fears that “state officers will be required to delay the release of some detainees for no reason other than to verify their immigration status.” Ante, 2. Of course, any investigatory detention, in cluding one under may become an “unreasonable seizur[e],” U. S. onst., Amdt. IV, if it lasts too long. See But that has nothing to do with this case, in which the Gov ernment claims that is pre-empted by federal immi gration law, not that anyone’s Fourth Amendment rights have been violated. And I know of no reason why a protracted detention that does not violate the Fourth Amendment would contradict or conflict with any federal immigration law. ite as: 5 U. S. (2012) 11 Opinion of SALIA, J. “A peace officer, without a warrant, may arrest a per son if the officer has probable cause to believe [t]he person to be arrested has committed any public offense that makes the person removable from the United States.” S. B. 70, (A)(5), Ariz. Rev. Stat. Ann. This provision of S. B. 70 expands the statutory list of offenses for which an Arizona police officer may make an arrest without a warrant. See If an officer has probable cause to believe that an individual is “removable” by reason of a public offense, then a warrant is not re quired to make an arrest. The Government’s primary contention is that is pre-empted by federal immigration law because it allows state officials to make arrests “with out regard to federal priorities.” Brief for United States 53. The ourt’s opinion focuses on limits that ongress has placed on federal officials’ authority to arrest remov able aliens and the possibility that state officials will make arrests “to achieve [Arizona’s] own immigration policy” and “without any input from the Federal Government.” Ante, at 17. Of course on this pre-enforcement record there is no reason to assume that Arizona officials will ignore federal immigration policy (unless it be the questionable policy of not wanting to identify illegal aliens who have committed offenses that make them removable). As Arizona points out, federal law expressly provides that state officers may “cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States,” 8 U.S. ()(B); and “cooperation” requires neither identical efforts nor prior federal approval. It is consistent with the Arizona statute, and with the “cooperat[ive]” system that ongress has created, for state officials to arrest a removable alien, 12 ARIZONA v. UNITED STATES Opinion of SALIA, J. contact federal immigration authorities, and follow their lead on what to do next. And it is an assault on logic to say that identifying a removable alien and holding him for federal determination of whether he should be removed “violates the principle that the removal process is entrusted to the discretion of the Federal Government,” ante, at 18. The State’s detention does not represent commence ment of the removal process unless the Federal Govern ment makes it so. But that is not the most important point. The most important point is that, as we have discussed, Arizona is entitled to have “its own immigration policy”—including a more rigorous enforcement policy—so long as that does not conflict with federal law. The ourt says, as though the point is utterly dispositive, that “it is not a crime for a removable alien to remain present in the United States,” ante, at 15. It is not a federal crime, to be sure. But there is no reason Arizona cannot make it a state crime for a removable alien (or any illegal alien, for that matter) to remain present in Arizona. The ourt quotes 8 U.S. which provides that, “[o]n a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States.” Section 1357(a)(2) also provides that a federal immigration official “shall have power without warrant to arrest any alien in the United States, if he has reason to believe that the alien so arrested is in the United States in violation of any [federal immigration] law or regulation and is likely to escape before a warrant can be obtained for his arrest.” But statutory limitations upon the actions of federal officers in enforcing the United States’ power to protect its borders do not on their face apply to the actions of state officers in enforcing the State’s power to protect its borders. There is no more reason to read these provisions as implying that state officials are subject to similar limi ite as: 5 U. S. (2012) 13 Opinion of SALIA, J. tations than there is to read them as implying that only federal officials may arrest removable And in any event neither implication would constitute the sort of clear elimination of the States’ sovereign power that our cases demand. The ourt raises concerns about “unnecessary harass ment of some aliens whom federal officials determine should not be removed.” Ante, at 17. But we have no license to assume, without any support in the record, that Arizona officials would use their arrest authority under to harass anyone. And it makes no difference that federal officials might “determine [that some unlawfully present aliens] should not be removed,” They may well de termine not to remove from the United States aliens who have no right to be here; but unless and until these aliens have been given the right to remain, Arizona is entitled to arrest them and at least bring them to federal officials’ attention, which is all that necessarily entails. (In my view, the State can go further than this, and punish them for their unlawful entry and presence in Arizona.) The Government complains that state officials might not heed “federal priorities.” Indeed they might not, particu larly if those priorities include willful blindness or delib- erate inattention to the presence of removable aliens in Arizona. The State’s whole complaint—the reason this law was passed and this case has arisen—is that the citizens of Arizona believe federal priorities are too lax. The State has the sovereign power to protect its borders more rigorously if it wishes, absent any valid federal prohibition. The Executive’s policy choice of lax federal enforcement does not constitute such a prohibition. “In addition to any violation of federal law, a person is guilty of willful failure to complete or carry an alien registration document if the person is in violation of 8 14 ARIZONA v. UNITED STATES Opinion of SALIA, J. [U. S.] or” S. B. 70, (A), as amended, Ariz. Rev. Stat. Ann. (A). It is beyond question that a State may make violation of federal law a violation of state law as well. We have held that to be so even when the interest protected is a distinc tively federal interest, such as protection of the dignity of the national flag, see (1907), or protection of the Federal Government’s ability to recruit soldiers, (1920). “[T]he State is not inhibited from making the national purposes its own purposes to the extent of exerting its police power to prevent its own citizens from obstructing the accomplishment of such purposes.” 31 (inter nal quotation marks omitted). Much more is that so when, as here, the State is protecting its own interest, the integ rity of its borders. And we have said that explicitly with regard to illegal immigration: “Despite the exclusive fed eral control of this Nation’s borders, we cannot conclude that the States are without any power to deter the influx of persons entering the United States against federal law, and whose numbers might have a discernible impact on traditional state concerns.” U.S. 202, 228, n. 23 The ourt’s opinion relies upon v. Davidowitz, Ante, at 9–. But that case did not, as the ourt believes, establish a “field preemption” that implicitly eliminates the States’ sovereign power to exclude those whom federal law excludes. It held that the States are not permitted to establish “additional or auxiliary” registra tion requirements for –. But does not establish additional or auxiliary registration requirements. It merely makes a violation of state law the very same failure to register and failure to carry evidence of registration that are violations of federal law. does not prevent the State from relying on the federal ite as: 5 U. S. (2012) 15 Opinion of SALIA, J. registration system as “an available aid in the enforce ment of a number of statutes of the state applicable to aliens whose constitutional validity has not been ques tioned.” at 75–76 (Stone, J., dissenting). One such statute is Arizona’s law forbidding illegal aliens to collect unemployment benefits, –781(B) (West 2012). To enforce that and other laws that validly turn on alien status, Arizona has, in Justice Stone’s words, an interest in knowing “the number and whereabouts of aliens within the state” and in having “a means of their identification,” And it can punish the aliens’ failure to comply with the provisions of federal law that make that knowledge and identification possible. In some areas of uniquely federal concern—e.g., fraud in a federal administrative process ) or perjury in violation of a federally required oath (In re Loney, 134 U.S. (1890))—this ourt has held that a State has no legitimate interest in enforcing a federal scheme. But the federal alien registration system is certainly not of uniquely federal interest. States, private entities, and individuals rely on the federal registration system (including the E-Verify program) on a regular basis. Arizona’s legitimate in terest in protecting (among other things) its unemployment benefits system is an entirely adequate basis for making the violation of federal registration and carry require ments a violation of state law as well. The ourt points out, however, ante, at 11, that in some respects the state law exceeds the punishments prescribed by federal law: It rules out probation and pardon, which are available under federal law. The answer is that it makes no difference. Illegal immigrants who violate violate Arizona law. It is one thing to say that the Su premacy lause prevents Arizona law from excluding those whom federal law admits. It is quite something else to say that a violation of Arizona law cannot be punished 16 ARIZONA v. UNITED STATES Opinion of SALIA, J. more severely than a violation of federal law. Especially where (as here) the State is defending its own sovereign interests, there is no precedent for such a limitation. The sale of illegal drugs, for example, ordinarily violates state law as well as federal law, and no one thinks that the state penalties cannot exceed the federal. As I have dis cussed, moreover, “field preemption” cannot establish a prohibition of additional state penalties in the area of immigration. Finally, the Government also suggests that poses an obstacle to the administration of federal immigration law, see Brief for United States 31–33, but “there is no conflict in terms, and no possibility of such conflict, [if] the state statute makes federal law its own,” 336 U.S. 725, 735 (1949). It holds no fear for me, as it does for the ourt, that “[w]ere to come into force, the State would have the power to bring criminal charges against individuals for violating a federal law even in circumstances where fed- eral officials in charge of the comprehensive scheme de termine that prosecution would frustrate federal policies.” Ante, at 11. That seems to me entirely appropriate when the State uses the federal law (as it must) as the criterion for the exercise of its own power, and the implementation of its own policies of excluding those who do not belong there. What I do fear—and what Arizona and the States that support it fear—is that “federal policies” of nonen forcement will leave the States helpless before those evil effects of illegal immigration that the ourt’s opinion dutifully recites in its prologue (ante, at 6) but leaves unremedied in its disposition. “It is unlawful for a person who is unlawfully present in the United States and who is an unauthorized alien to knowingly apply for work, solicit work in a public ite as: 5 U. S. (2012) 17 Opinion of SALIA, J. place or perform work as an employee or independent contractor in this state.” S. B. 70, as amended, Ariz. Rev. Stat. Ann. Here, the ourt rightly starts with De which involved a alifornia law providing that “ ‘[n]o employer shall knowingly employ an alien who is not entitled to lawful residence in the United States if such employment would have an adverse effect on lawful resident workers.’ ” 52 (quoting alifor nia Labor ode Ann. This ourt concluded that the alifornia law was not pre-empted, as ongress had neither occupied the field of “regulation of employment of illegal aliens” nor expressed “the clear and manifest pur pose” of displacing such state regulation. 56–357 (internal quotation marks omitted). Thus, at the time De anas was decided, would have been indubitably lawful. The only relevant change is that ongress has since enacted its own restrictions on employers who hire illegal aliens, 8 U.S. in legislation that also includes some civil (but no criminal) penalties on illegal aliens who accept unlawful employment. The ourt concludes from this (reasonably enough) “that ongress made a deliberate choice not to impose criminal penalties on aliens who seek, or engage in, unauthorized employment,” ante, at 13. But that is not the same as a deliberate choice to prohibit the States from imposing criminal penalties. ongress’s intent with regard to exclusion of state law need not be guessed at, but is found in the law’s express pre-emption provision, which excludes “any State or local law impos- ing civil or criminal sanctions (other than through licens ing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens,” (emphasis added). ommon sense, reflected in the canon expressio unius est exclusio alterius, suggests 18 ARIZONA v. UNITED STATES Opinion of SALIA, J. that the specification of pre-emption for laws punishing “those who employ” implies the lack of pre-emption for other laws, including laws punishing “those who seek or accept employment.” The ourt has no credible response to this. It quotes our jurisprudence to the effect that an “express pre emption provisio[n] does not bar the ordinary working of conflict pre-emption principles.” Ante, at 14 (internal quotation marks omitted)). True enough— conflict preemption principles. It then goes on say that since “ongress decided it would be inappropriate to im pose criminal penalties on aliens who seek or engage in unauthorized employment,” “[i]t follows that a state law to the contrary is an obstacle to the regulatory system on gress chose.” Ante, at 15. For “ ‘[w]here a comprehensive federal scheme intentionally leaves a portion of the regu lated field without controls, then the pre-emptive inference can be drawn.’ ” (quoting Puerto Rico of on sumer (1988)). All that is a classic description not of conflict pre-emption but of field pre-emption, which (concededly) does not occur beyond the terms of an express pre-emption provision. The ourt concludes that “would interfere with the careful balance struck by ongress,” ante, at 15, (an other field pre-emption notion, by the way) but that is easy to say and impossible to demonstrate. The ourt relies primarily on the fact that “[p]roposals to make unauthor ized work a criminal offense were debated and discussed during the long process of drafting [the Immigration Re form and ontrol Act of 1986 (IRA)],” “[b]ut ongress rejected them.” Ante, at 14. There is no more reason to believe that this rejection was expressive of a desire that there be no sanctions on employees, than expressive of a desire that such sanctions be left to the States. To tell the ite as: 5 U. S. (2012) 19 Opinion of SALIA, J. truth, it was most likely expressive of what inaction ordi narily expresses: nothing at all. It is a “naïve assumption that the failure of a bill to make it out of committee, or to be adopted when reported to the floor, is the same as a congressional rejection of what the bill contained.” v. National Foreign Trade ouncil, 389 (SALIA, J., concurring in judgment) (internal quotation marks and alterations omitted). * * * The brief for the Government in this case asserted that “the Executive Branch’s ability to exercise discretion and set priorities is particularly important because of the need to allocate scarce enforcement resources wisely.” Brief for United States 21. Of course there is no reason why the Federal Executive’s need to allocate its scarce enforcement resources should disable Arizona from devoting its re sources to illegal immigration in Arizona that in its view the Federal Executive has given short shrift. Despite ongress’s prescription that “the immigration laws of the United States should be enforced vigorously and uniformly,” IRA §, 0 Stat. 3384, Arizona asserts without contradiction and with supporting citations: “[I]n the last decade federal enforcement efforts have focused primarily on areas in alifornia and Texas, leaving Arizona’s border to suffer from comparative neglect. The result has been the funneling of an in creasing tide of illegal border crossings into Arizona. Indeed, over the past decade, over a third of the Na tion’s illegal border crossings occurred in Arizona.” Brief for Petitioners 2–3 (footnote omitted). Must Arizona’s ability to protect its borders yield to the reality that ongress has provided inadequate funding for federal enforcement—or, even worse, to the Executive’s unwise targeting of that funding? 20 ARIZONA v. UNITED STATES Opinion of SALIA, J. But leave that aside. It has become clear that federal enforcement priorities—in the sense of priorities based on the need to allocate “scarce enforcement resources”—is not the problem here. After this case was argued and while it was under consideration, the Secretary of Homeland Security announced a program exempting from immi- gration enforcement some 1.4 million illegal immigrants under the age of 30.4 If an individual unlawfully present in the United States “• came to the United States under the age of sixteen; “• has continuously resided in the United States for at least five years “• is currently in school, has graduated from high school, has obtained a general education develop ment certificate, or is an honorably discharged veteran “• has not been convicted of a [serious crime]; and “• is not above the age of thirty,”5 then U. S. immigration officials have been directed to “defe[r] action” against such individual “for a period of two years, subject to renewal.”6 The husbanding of scarce enforcement resources can hardly be the justification for this, since the considerable administrative cost of conduct ing as many as 1.4 million background checks, and ruling on the biennial requests for dispensation that the nonen —————— 4 Preston & ushman, Obama to Permit Young Migrants to Remain in U. S., N. Y. Times, June 16, 2012, p. A1. 5 Memorandum from Janet Napolitano, Secretary of Homeland Secu rity, to David V. Aguilar, Acting ommissioner, U. S. ustoms and Border Protection; Alejandro Mayorkas, Director, U. S. itizenship and Immigration Services; and John Morton, Director, U. S. Immigra- tion and ustoms Enforcement, p. 1 (June 15, 2012), online at http://www.dhs.gov (all Internet materials as visited June 22, 2012, and available in lerk of ourt’s case file). 6 ite as: 5 U. S. (2012) 21 Opinion of SALIA, J. forcement program envisions, will necessarily be deducted from immigration enforcement. The President said at a news conference that the new program is “the right thing to do” in light of ongress’s failure to pass the Administra tion’s proposed revision of the Immigration Act.7 Perhaps it is, though Arizona may not think so. But to say, as the ourt does, that Arizona contradicts federal law by enforc ing applications of the Immigration Act that the President declines to enforce boggles the mind. The ourt opinion’s looming specter of inutterable hor ror—“[i]f of the Arizona statute were valid, every State could give itself independent authority to prosecute fed- eral registration violations,” ante, at —seems to me not so horrible and even less looming. But there has come to pass, and is with us today, the specter that Arizona and the States that support it predicted: A Federal Govern ment that does not want to enforce the immigration laws as written, and leaves the States’ borders unprotected against immigrants whom those laws would exclude. So the issue is a stark one. Are the sovereign States at the mercy of the Federal Executive’s refusal to enforce the Nation’s immigration laws? A good way of answering that question is to ask: Would the States conceivably have entered into the Union if the onstitution itself contained the ourt’s holding? Today’s judgment surely fails that test. At the onstitutional onvention of 1787, the delegates contended with “the jealousy of the states with regard to their sovereignty.” 1 Records of the Federal onvention 19 (M. Farrand ed. 1911) (statement of Edmund Randolph). Through ratifica tion of the fundamental charter that the onvention pro duced, the States ceded much of their sovereignty to the Federal Government. But much of it remained jealously —————— 7 Remarks by the President on Immigration (June 15, 2012), online at http://www.whitehouse.gov. 22 ARIZONA v. UNITED STATES Opinion of SALIA, J. guarded—as reflected in the innumerable proposals that never left Independence Hall. Now, imagine a provision— perhaps inserted right after Art. I, cl. 4, the Naturali zation lause—which included among the enumerated powers of ongress “To establish Limitations upon Immi gration that will be exclusive and that will be enforced only to the extent the President deems appropriate.” The delegates to the Grand onvention would have rushed to the exits. As is often the case, discussion of the dry legalities that are the proper object of our attention suppresses the very human realities that gave rise to the suit. Arizona bears the brunt of the country’s illegal immigration problem. Its citizens feel themselves under siege by large numbers of illegal immigrants who invade their property, strain their social services, and even place their lives in jeopardy. Federal officials have been unable to remedy the problem, and indeed have recently shown that they are unwilling to do so. Thousands of Arizona’s estimated 400,000 illegal immigrants—including not just children but men and women under 30—are now assured immunity from en forcement, and will be able to compete openly with Ari zona citizens for employment. Arizona has moved to protect its sovereignty—not in contradiction of federal law, but in complete compliance with it. The laws under challenge here do not extend or revise federal immigration restrictions, but merely enforce those restrictions more effectively. If securing its territory in this fashion is not within the power of Arizona, we should cease referring to it as a sovereign State. I dissent. ite as: 5 U. S. (2012) 1 Opinion of THOMAS, J. SUPREME OURT OF THE UNITED STATES No. 11–182 ARIZONA, ET AL., PETITIONERS v. UNITED STATES ON WRIT OF ERTIORARI TO THE UNITED STATES OURT OF APPEALS FOR THE NINTH IRUIT [June 25, 2012] JUSTIE THOMAS, concurring in part and dissenting in part. I agree with JUSTIE SALIA that federal immigration law does not pre-empt any of the challenged provisions of S. B. 70. I reach that conclusion, however, for the sim- ple reason that there is no conflict between the “ordinary meanin[g]” of the relevant federal laws and that of the four provisions of Arizona law at issue here. v. Levine, 5 U.S. 5, (THOMAS, J., concurring in judgment) (“Pre-emption analysis should not be a free- wheeling judicial inquiry into whether a state statute is in tension with federal objectives, but an inquiry into whether the ordinary meanings of state and federal law conflict” (brackets; internal quotation marks omitted)). Section 2(B) of S. B. 70 provides that, when Arizona law enforcement officers reasonably suspect that a person they have lawfully stopped, detained, or arrested is unlaw- fully present, “a reasonable attempt shall be made, when practicable, to determine the immigration status of the person” pursuant to the verification procedure established by ongress in 8 U.S. Ariz. Rev. Stat. Ann. (B) (West 2012). Nothing in the text of that or any other federal statute prohibits Arizona from directing its officers to make immigration-related inquiries in these situations. To the contrary, federal law expressly states that “no State or local government entity may be prohib- 2 ARIZONA v. UNITED STATES Opinion of THOMAS, J. ited, or in any way restricted, from sending to or receiving from” federal officials “information regarding the immigra- tion status” of an alien. 8 U.S. And, federal law imposes an affirmative obligation on federal officials to respond to a State’s immigration-related inquiries. Section 6 of S. B. 70 authorizes Arizona law enforce- ment officers to make warrantless arrests when there is probable cause to believe that an arrestee has committed a public offense that renders him removable under federal immigration law. States, as sovereigns, have inherent authority to conduct arrests for violations of federal law, unless and until ongress removes that authority. See United States v. Di Re, (holding that state law determines the validity of a warrantless arrest for a violation of federal law “in the absence of an applicable federal statute”). Here, no federal statute purports to withdraw that authority. As JUSTIE SALIA notes, ante, at 12 (opinion concurring in part and dissent- ing in part), federal law does limit the authority of federal officials to arrest removable aliens, but those statutes do not apply to state officers. And, federal law expressly recognizes that state officers may “cooperate with the Attorney General” in the “apprehension” and “detention” of “aliens not lawfully present in the United States.” ()(B). Nothing in that statute indicates that such cooperation requires a prior “request, approval, or other instruction from the Federal Government.” Ante, at 18 (majority opinion). Section 3 of S. B. 70 makes it a crime under Arizona law for an unlawfully present alien to willfully fail to complete or carry an alien registration document in viola- tion of 8 U.S. and Section 3 simply incorporates federal registration standards. Unlike the ourt, I would not hold that ongress pre-empted the field of enforcing those standards. “[O]ur recent cases have ite as: 5 U. S. (2012) 3 Opinion of THOMAS, J. frequently rejected field pre-emption in the absence of statutory language expressly requiring it.” amps New- found/Owatonna, 617 (1997) (THOMAS, J., dissenting); see, e.g., New York State of Social (1973). Here, nothing in the text of the relevant federal statutes indicates that ongress intended enforcement of its registration requirements to be exclusively the prov- ince of the Federal Government. That ongress created a “full set of standards governing alien registration,” ante, at (majority opinion), merely indicates that it intended the scheme to be capable of working on its own, not that it wanted to preclude the States from enforcing the federal standards. v. Davidowitz, is not to the contrary. As JUSTIE SALIA explains, ante, at 14, at most holds that federal law pre-empts the States from creating additional registration requirements. But here, Arizona is merely seeking to enforce the very regis- tration requirements that ongress created. Section 5() of S. B. 70 prohibits unlawfully present aliens from knowingly applying for, soliciting, or perform- ing work in Arizona. Section 5() operates only on indi- viduals whom ongress has already declared ineligible to work in the United States. Nothing in the text of the federal immigration laws prohibits States from imposing their own criminal penalties on such individuals. Fed- eral law expressly pre-empts States from “imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized ” 8 U.S. (emphasis added). But it leaves States free to impose criminal sanctions on the employees themselves. Despite the lack of any conflict between the ordinary meaning of the Arizona law and that of the federal laws at issue here, the ourt holds that various provisions of the Arizona law are pre-empted because they “stan[d] as an 4 ARIZONA v. UNITED STATES Opinion of THOMAS, J. obstacle to the accomplishment and execution of the full purposes and objectives of ongress.” at I have explained that the “purposes and objectives” theory of implied pre-emption is inconsistent with the onstitu- tion because it invites courts to engage in freewheeling speculation about congressional purpose that roams well beyond statutory text. See 5 U. S., (opin- ion concurring in judgment); see also Williamson v. Mazda Motor of America, Inc., 562 U.S. – (opin- ion concurring in judgment) (slip op., –3); Haywood v. Drown, 6 U.S. 729, 7 Under the Supremacy lause, pre-emptive effect is to be given to congressionally enacted laws, not to judicially divined legislative purposes. See (THOMAS, J., concurring in judgment). Thus, even assum- ing the existence of some tension between Arizona’s law and the supposed “purposes and objectives” of ongress, I would not hold that any of the provisions of the Arizona law at issue here are pre-empted on that basis. ite as: 5 U. S. (2012) 1 Opinion of ALITO, J. SUPREME OURT OF THE UNITED STATES No. 11–182 ARIZONA, ET AL., PETITIONERS v. UNITED STATES ON WRIT OF ERTIORARI TO THE UNITED STATES OURT OF APPEALS FOR THE NINTH IRUIT [June 25, 2012] JUSTIE ALITO, concurring in part and dissenting in part. This case concerns four provisions of Arizona’s Support Our Law Enforcement and Safe Neighborhoods Act, S. B. 70. Section 2(B) requires Arizona law enforcement officers to make a “reasonable attempt,” “when practica- ble,” to ascertain the immigration status of any person whom an officer lawfully stops, detains, or arrests “where reasonable suspicion exists that the person is an alien and is unlawfully present in the United States.” Ariz. Rev. Stat. Ann. (B) (West 2012). Section 3 provides that an alien who willfully fails “to complete or carry an alien registration document” in violation of 8 U.S. or is guilty of a misdemeanor. Ariz. Rev. Stat. Ann. (A) Section 5() makes it a misdemeanor for an unauthorized alien who is unlawfully present in the United States “to knowingly apply for work, solicit work in a public place or perform work as an employee or independent contractor.” Ariz. Rev. Stat. Ann. And authorizes Arizona law enforcement officers to arrest without a warrant any person whom the officer has probable cause to believe “has committed any public offense that makes the person re- movable from the United States.” Ariz. Rev. Stat. Ann. I agree with the ourt that is not pre-empted. 2 ARIZONA v. UNITED STATES Opinion of ALITO, J. That provision does not authorize or require Arizona law enforcement officers to do anything they are not already allowed to do under existing federal law. The United States’ argument that is pre-empted, not by any federal statute or regulation, but simply by the Executive’s current enforcement policy is an astounding assertion of federal executive power that the ourt rightly rejects. I also agree with the ourt that is pre-empted by virtue of our decision in v. Davidowitz, 312 U.S. 52 Our conclusion in that case that ongress had enacted an “all-embracing system” of alien registration and that States cannot “enforce additional or auxiliary regulations,” at 66–, 74, forecloses Arizona’s attempt here to impose additional, state-law penalties for viola- tions of the federal registration scheme. While I agree with the ourt on and I part ways on and The ourt’s holding on is inconsistent with De which held that employment regulation, even of aliens unlawfully present in the country, is an area of traditional state concern. Because state police powers are implicated here, our precedents require us to presume that federal law does not displace state law unless ongress’ intent to do so is clear and manifest. I do not believe ongress has spoken with the requisite clarity to justify invalidation of Nor do I believe that is invalid. Like adds virtually nothing to the authority that Arizona law enforcement officers already exercise. And whatever little authority they have gained is consistent with federal law. Section 2(B) A Although of the Arizona law has occasioned much controversy, it adds nothing to the authority that Arizona law enforcement officers, like officers in all other States, already possess under federal law. For that reason, I ite as: 5 U. S. (2012) 3 Opinion of ALITO, J. agree with the ourt that is not pre-empted. Section 2(B) quite clearly does not expand the authority of Arizona officers to make stops or arrests. It is triggered only when a “lawful stop, detention or arrest [is] made in the enforcement of any other [state or local] law or ordinance.” Ariz. Rev. Stat. Ann. (B) (emphasis added). Section 2(B) thus comes into play only when an officer has reasonable suspicion or probable cause to believe that a person has committed a nonimmigration offense. Arizona officers plainly possessed this authority before took effect. Section 2(B) also does not expand the authority of Ari- zona officers to inquire about the immigration status of persons who are lawfully detained. When a person is stopped or arrested and “reasonable suspicion exists that the person is an alien and is unlawfully present in the United States,” instructs Arizona officers to make a “reasonable attempt,” “when practicable,” to ascertain that person’s immigration status. Ariz. Rev. Stat. Ann. 51(B). Even before the Arizona Legislature enacted federal law permitted state and local officers to make such inquiries. In 8 U.S. ()(A), on- gress has made clear that state and local governments need not enter into formal agreements with the Federal Government in order “to communicate with the [Federal Government] regarding the immigration status of any individual.” In addition, ongress has mandated that neither the Federal Government nor any state or local government may “prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, [the Federal Government] information regarding the citizenship or immigration status, lawful or unlawful, of any individual.” see also (providing that “no State or local government entity may be prohibited, or in any way restricted, from sending to or receiving from [the Federal Government] information regarding the 4 ARIZONA v. UNITED STATES Opinion of ALITO, J. immigration status, lawful or unlawful, of an alien in the United States”). And while these provisions preserve the authority of state and local officers to seek immigration- status information from the Federal Government, another federal statute, requires that the Federal Gov- ernment respond to any such inquiries “by providing the requested verification or status information.” It comes as no surprise, therefore, that many States and localities permit their law enforcement officers to make the kinds of inquiries that prescribes. See App. 294–298 (report- ing that officers in 59 surveyed state and local jurisdic- tions “generally” ask arrestees about their immigration status while 34 do not and that officers in 78 jurisdictions “generally” inform Immigration and ustoms Enforcement (IE) when they believe an arrestee to be an undocumented alien while only 17 do not). ongress has invited state and local governments to make immigration-related in- quiries and has even obligated the Federal Government to respond. Through Arizona has taken ongress up on that invitation. The United States does not deny that officers may, at their own discretion, inquire about the immigration status of persons whom they lawfully detain. Instead, the United States argues that is pre-empted because it impedes federal-state cooperation by mandating that officers verify the immigration status of every detained person if there is reason to believe that the person is unlawfully present in the country. The United States claims that ’s man- date runs contrary to federal law in that it “precludes officers from taking [the Federal Government’s] priorities and discretion into account.” Brief for United States 50. “[B]y interposing a mandatory state law between state and local officers and their federal counterparts,” writes the United States, “stands as an obstacle to the ac- complishment of the federal requirement of cooperation and the full effectuation of the enforcement judgment and ite as: 5 U. S. (2012) 5 Opinion of ALITO, J. discretion ongress has vested in the Executive Branch.” The underlying premise of the United States’ argument seems to be that state and local officers, when left to their own devices, generally take federal enforcement priorities into account. But there is no reason to think that this premise is true. And even if it were, it would not follow that ’s blanket mandate is at odds with federal law. Nothing in the relevant federal statutes requires state and local officers to consider the Federal Government’s priori- ties before requesting verification of a person’s immigra- tion status. Neither 8 U.S. () nor conditions the right of state and local officers to communi- cate with the Federal Government on their first taking account of its priorities. Nor does condition the Federal Government’s obligation to answer requests for in- formation on the sensitivity of state and local officers to its enforcement discretion. In fact, dictates that the Federal Government “shall respond” to any inquiry seeking verification of immigration status, and that com- mand applies whether or not the requesting officer has bothered to consider federal priorities. Because no federal statute requires such consideration, does not conflict with federal law. In any event, it is hard to see how state and local offi- cers could proceed in conformity with the Federal Govern- ment’s enforcement priorities without making an inquiry into a suspected alien’s immigration status. For example, one of the Federal Government’s highest priorities is the apprehension and removal of aliens who have failed to comply with a final order of removal. See App. 8. How can an officer identify those persons without first in- quiring about their status? At bottom, the discretion that ultimately matters is not whether to verify a person’s immigration status but whether to act once the person’s status is known. For that reason, ’s verification 6 ARIZONA v. UNITED STATES Opinion of ALITO, J. requirement is not contrary to federal law because the Federal Government retains the discretion that matters most––that is, the discretion to enforce the law in par- ticular cases. If an Arizona officer contacts the Federal Government to verify a person’s immigration status and federal records reveal that the person is in the coun- try unlawfully, the Federal Government decides, presum- ably based on its enforcement priorities, whether to have the person released or transferred to federal custody. Enforcement discretion thus lies with the Federal Gov- ernment, not with Arizona. Nothing in suggests otherwise. The United States’ attack on is quite remarkable. The United States suggests that a state law may be pre- empted, not because it conflicts with a federal statute or regulation, but because it is inconsistent with a federal agency’s current enforcement priorities. Those priorities, however, are not law. They are nothing more than agency policy. I am aware of no decision of this ourt recognizing that mere policy can have pre-emptive force. f. Barclays Bank PL v. Franchise Tax Bd. of al., (1994) (holding that “Executive Branch communications that express federal policy but lack the force of law cannot render unconstitutional” an “otherwise valid, congression- ally condoned” state law). If were pre-empted at the present time because it is out of sync with the Federal Government’s current priorities, would it be unpre-empted at some time in the future if the agency’s priorities changed? Like most law enforcement agencies, IE does not set out inflexible rules for its officers to follow. To the con- trary, it provides a list of factors to guide its officers’ enforcement discretion on a case-by-case basis. See Memo- randum from John Morton, Director, IE, to All Field Office Directors et al., p. 4 (“This list is not exhaustive and no one factor is determinative. IE offi- ite as: 5 U. S. (2012) 7 Opinion of ALITO, J. cers, agents, and attorneys should always consider prose- cutorial discretion on a case-by-case basis. The decisions should be based on the totality of the circumstances, with the goal of conforming to IE’s enforcement priorities”). Among those factors is “the agency’s civil immigration enforcement priorities,” ib which change from admin- istration to administration. If accepted, the United States’ pre-emption argument would give the Executive unprece- dented power to invalidate state laws that do not meet with its approval, even if the state laws are otherwise consistent with federal statutes and duly promulgated regulations. This argument, to say the least, is fundamen- tally at odds with our federal system. B It has been suggested that will cause some per- sons who are lawfully stopped to be detained in violation of their constitutional rights while a prolonged investiga- tion of their immigration status is undertaken. But noth- ing on the face of the law suggests that it will be enforced in a way that violates the Fourth Amendment or any other provision of the onstitution. The law instructs officers to make a “reasonable attempt” to investigate immigration status, and this language is best understood as incorporat- ing the Fourth Amendment’s standard of reasonableness. Indeed, the Arizona Legislature has directed that “shall be implemented in a manner consistent with federal laws protecting the civil rights of all persons and re- specting the privileges and immunities of United States citizens.” Ariz. Rev. Stat. Ann. (L). In the situations that seem most likely to occur, en- forcement of will present familiar Fourth Amend- ment questions. To take a common situation, suppose that a car is stopped for speeding, a nonimmigration offense. (Recall that comes into play only where a stop or arrest is made for a nonimmigration offense.) Suppose 8 ARIZONA v. UNITED STATES Opinion of ALITO, J. also that the officer who makes the stop subsequently acquires reasonable suspicion to believe that the driver entered the country illegally, which is a federal crime. See 8 U.S. It is well established that state and local officers gener- ally have authority to make stops and arrests for viola- tions of federal criminal laws. See, e.g., ; United States v. Di Re, I see no reason why this princi- ple should not apply to immigration crimes as well. Lower courts have so held. See, e.g., (A1 20) (upholding the lawfulness of a detention because the officer had an objectively reason- able belief that the arrestees “had committed immigra- tion violations”); United States v. Vasquez-Alvarez, 176 F.3d 1294, 1296 (noting that “state law- enforcement officers have the general authority to investi- gate and make arrests for violations of federal immigra- tion laws”); (A9 1983), overruled on other grounds, 199 F.3d 37 (holding that “federal law does not preclude local enforcement of the criminal provisions” of federal immigration law). And the United States, consistent with the position long taken by the Office of Legal ounsel (OL) in the Department of Justice, does not contend otherwise. See Brief for United States n. 33; see also Memorandum from OL to the Attorney General App. 268–273; Assistance by State and Local Police in Apprehending Illegal Aliens, 20 Op. Off. Legal ounsel 26 (1996). More importantly, no federal statute casts doubt on this authority. To be sure, there are a handful of statutes that purport to authorize state and local officers to make immi- gration-related arrests in certain situations. See, e.g., 8 U.S. §13(a)() (providing for the extension of “any” immigration enforcement authority to state and local ite as: 5 U. S. (2012) 9 Opinion of ALITO, J. officers in the event of an “actual or imminent mass in- flux of aliens arriving off the coast”); (a) (provid- ing authority to arrest criminal aliens who had illegally reentered the country but only after consultation with the Federal Government); (providing authority to make arrests for transporting and harboring certain aliens). But a grant of federal arrest authority in some cases does not manifest a clear congressional intent to displace the States’ police powers in all other cases. With- out more, such an inference is too weak to overcome our presumption against pre-emption where traditional state police powers are at stake. Accordingly, in our hypothet- ical case, the Arizona officer may arrest the driver for violating if the officer has probable cause. And if the officer has reasonable suspicion, the officer may detain the driver, to the extent permitted by the Fourth Amend- ment, while the question of illegal entry is investigated. We have held that a detention based on reasonable suspicion that the detainee committed a particular crime “can become unlawful if it is prolonged beyond the time reasonably required to complete that mission.” Illinois v. aballes, But if during the course of a stop an officer acquires suspicion that a de- tainee committed a different crime, the detention may be extended for a reasonable time to verify or dispel that suspicion. f. 1 (holding that “no additional Fourth Amendment justifica- tion” was required because any questioning concerning immigration status did not prolong the detention). In our hypothetical case, therefore, if the officer, after initially stopping the car for speeding, has a reasonable suspicion that the driver entered the country illegally, the officer may investigate for evidence of illegal entry. But the length and nature of this investigation must remain with- in the limits set out in our Fourth Amendment cases. An investigative stop, if prolonged, can become an arrest and ARIZONA v. UNITED STATES Opinion of ALITO, J. thus require probable cause. See aballes, 07. Similarly, if a person is moved from the site of the stop, probable cause will likely be required. See (holding that the line be- tween detention and arrest is crossed “when the police, without probable cause or a warrant, forcibly remove a person from his home or other place in which he is entitled to be and transport him to the police station, where he is detained, although briefly, for investigative purposes”). If properly implemented, should not lead to fed- eral constitutional violations, but there is no denying that enforcement of will multiply the occasions on which sensitive Fourth Amendment issues will crop up. These civil-liberty concerns, I take it, are at the heart of most objections to lose and difficult questions will in- evitably arise as to whether an officer had reasonable suspicion to believe that a person who is stopped for some other reason entered the country illegally, and there is a risk that citizens, lawful permanent residents, and others who are lawfully present in the country will be detained. To mitigate this risk, Arizona could issue guidance to officers detailing the circumstances that typically give rise to reasonable suspicion of unlawful presence. And in the spirit of the federal-state cooperation that the United States champions, the Federal Government could share its own guidelines. Arizona could also provide officers with a nonexclusive list containing forms of identification suffi- cient under to dispel any suspicion of unlawful presence. If Arizona accepts licenses from most States as proof of legal status, the problem of roadside detentions will be greatly mitigated.1 —————— 1 When the Real ID Act takes effect, the Federal Government will no longer accept state forms of identification that fail to meet certain federal requirements. One requirement is that any identification be issued only on proof that the applicant is lawfully present in the United States. 13. I ite as: 5 U. S. (2012) 11 Opinion of ALITO, J. Section 3 I agree that is pre-empted because, like the ourt, I read the opinion in to require that result. Although there is some ambiguity in the ourt largely spoke in the language of field pre-emption. The ourt explained that where ongress “has enacted a complete scheme of regulation and has therein provided a standard for the registration of aliens, states cannot, inconsistently with the purpose of ongress, conflict or interfere with, curtail or complement, the federal law, or enforce additional or auxiliary regulations.” –. In finding the Pennsylvania alien-registration law pre-empted, the ourt observed that ongress had “provided a standard for alien registration in a single integrated and all-embracing system” and that its intent was “to protect the personal liberties of law-abiding aliens through one uniform na- tional registration system.” If we credit our holding in that ongress has enacted “a single in- tegrated and all-embracing system” of alien registration and that States cannot “complement” that system or “en- force additional or auxiliary regulations,” at 66–, 74, then Arizona’s attempt to impose additional, state-law penalties for violations of federal registration require- ments must be invalidated. Section 5() While I agree that is pre-empted, I disagree with the ourt’s decision to strike down I do so in large measure because the ourt fails to give the same solici- tude to our decision in De anas, as it is willing to give our decision in In De anas, the ourt upheld against a pre-emption challenge a state law imposing fines on employers that hired aliens who were —————— anticipate that most, if not all, States will eventually issue forms of identification that suffice to establish lawful presence under 12 ARIZONA v. UNITED STATES Opinion of ALITO, J. unlawfully present in the United States. The ourt ex- plained that the mere fact that “aliens are the subject of a state statute does not render it a regulation of immigra- tion.” 4 U. S., The ourt emphasized instead that “States possess broad authority under their police powers to regulate the employment relationship to protect workers within the State.” 56. In light of that broad authority, the ourt declared that “[o]nly a demon- stration that complete ouster of state power was ‘the clear and manifest purpose of ongress’ would justify” the conclusion that “state regulation designed to protect vital state interests must give way to paramount federal legis- lation.” 57 (some internal quotation marks omit- ted); see also Bates v. Dow Agrosciences LL, 544 U.S. 431, 449 (“In areas of traditional state regulation, [the ourt] assume[s] that a federal statute has not sup- planted state law unless ongress has made such an intention ‘clear and manifest’ ” (some internal quotation marks omitted)). The ourt now tells us that times have changed. Since De anas, ongress has enacted “a comprehensive frame- work for combating the employment of illegal aliens,” and even though aliens who seek or obtain unauthorized work are not subject to criminal sanctions, they can suffer civil penalties. Ante, at 12–13 (internal quotation marks omit- ted). Undoubtedly, federal regulation in this area is more pervasive today. But our task remains unchanged: to determine whether the federal scheme discloses a clear and manifest congressional intent to displace state law. The ourt gives short shrift to our presumption against pre-emption. Having no express statement of congres- sional intent to support its analysis, the ourt infers from stale legislative history and from the comprehensiveness of the federal scheme that “ongress made a deliberate choice not to impose criminal penalties on aliens who seek, or engage in, unauthorized employment.” Ante, at 13. ite as: 5 U. S. (2012) 13 Opinion of ALITO, J. Because imposes such penalties, the ourt concludes that it stands as an obstacle to the method of enforcement chosen by ongress. Ante, at 15. The one thing that is clear from the federal scheme is that ongress chose not to impose federal criminal penal- ties on aliens who seek or obtain unauthorized work. But that does not mean that ongress also chose to pre-empt state criminal penalties. The inference is plausible, but far from necessary. As we have said before, the “decision not to adopt a regulation” is not “the functional equivalent of a regulation prohibiting all States and their political subdivisions from adopting such a regulation.” Sprietsma v. Mercury Marine, With any statutory scheme, ongress chooses to do some things and not others. If that alone were enough to demonstrate pre- emptive intent, there would be little left over for the States to regulate, especially now that federal authority reaches so far and wide. States would occupy tiny islands in a sea of federal power. This explains why state laws implicating traditional state powers are not pre-empted unless there is a “clear and manifest” congressional inten- tion to do so. Not only is there little evidence that ongress intended to pre-empt state laws like there is some evidence that ongress intended the opposite result. In making it unlawful for employers to hire unauthorized aliens, see 8 U.S. ongress made it clear that “any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws)” upon employers was pre-empted, Noticeably absent is any similar directive pre-empting state or local laws targeting aliens who seek or obtain unauthorized employment. Given that ongress expressly pre-empted certain state and local laws pertaining to employers but remained silent about laws pertaining to employees, one could infer that ongress intended to preserve state and local authority to 14 ARIZONA v. UNITED STATES Opinion of ALITO, J. regulate the employee side of the equation. At the very least, it raises serious doubts about whether ongress intended to pre-empt such authority. The ourt dismisses any inferences that might be drawn from the express pre-emption provision. See ante, at 14. But even though the existence of that provision “does not bar the ordinary working of conflict pre-emption principles” or impose a “ ‘special burden’ ” against pre- emption, 529 U.S. 861, –870 it is still probative of congressional intent. And it is the intent of ongress that is the “ulti- mate touchstone.” Retail lerks v. Schermerhorn, 375 U.S. 96, 3 (1963). The ourt infers from ongress’ decision not to impose federal criminal penalties that ongress intended to pre- empt state criminal penalties. But given that the express pre-emption provision covers only state and local laws regulating employers, one could just as well infer that ongress did not intend to pre-empt state or local laws aimed at alien employees who unlawfully seek or obtain work. Surely ongress’ decision not to extend its express pre-emption provision to state or local laws like is more probative of its intent on the subject of pre-emption than its decision not to impose federal criminal penalties for unauthorized work. In any event, the point I wish to emphasize is that inferences can be drawn either way. There are no necessary inferences that point decisively for or against pre-emption. Therefore, if we take seriously that state employment regulation is a traditional state concern and can be pre-empted only on a showing of “clear and manifest” congressional intent as required by De anas, then must survive. “Our precedents estab- lish that a high threshold must be met if a state law is to be pre-empted for conflicting with the purposes of a fed- eral Act.” hamber of ommerce of United States of America v. 563 U.S. (plurality opinion) ite as: 5 U. S. (2012) 15 Opinion of ALITO, J. (slip op., 2) (internal quotation marks omitted). I do not believe the United States has surmounted that barrier here. Section 6 I also disagree with the ourt’s decision that is pre- empted. This provision adds little to the authority that Arizona officers already possess, and whatever additional authority it confers is consistent with federal law. Section 6 amended an Arizona statute that authorizes warrantless arrests. See –3883 (West 20). Be- fore was added, that statute already permitted arrests without a warrant for felonies, misdemeanors committed in the arresting officer’s presence, petty offenses, and certain traffic-related criminal violations. See 3883(A)(1)–(4). Largely duplicating the authority already conferred by these prior subsections, added a new subsection, that au- thorizes officers to make warrantless arrests on probable cause that the arrestee has committed a “public offense” for which the arrestee is removable from the United States. A “public offense” is defined as conduct that is punishable by imprisonment or a fine according to the law of the State where the conduct occurred and that would be punishable under Arizona law had the conduct occurred in Arizona. See §13–5(27). In what way, if any, does enlarge the arrest authority of Arizona officers? It has been suggested that confers new authority in the following three circumstances: (1) where the arrestee committed but has not been charged with committing an offense in another State; (2) where the officer has probable cause to believe the arrestee commit- ted an offense for which he was previously arrested but not prosecuted; and (3) where the arrestee committed but has already served the sentence for a removable offense. These are exceedingly 16 ARIZONA v. UNITED STATES Opinion of ALITO, J. narrow categories, involving circumstances that will rarely arise. But such cases are possible, and therefore we must decide whether there are circumstances under which fed- eral law precludes a state officer from making an arrest based on probable cause that the arrestee committed a removable offense. A The idea that state and local officers may carry out arrests in the service of federal law is not unprecedented. As previously noted, our cases establish that state and local officers may make warrantless arrests for violations of federal law and that “in the absence of an applicable federal statute the law of the state where an arrest with- out warrant takes place determines its validity.” Di Re, 332 U. S., at ; see also 357 U. S., 05 (stating that, where a state officer makes an arrest based on fed- eral law, “the lawfulness of the arrest without warrant is to be determined by reference to state law”). Therefore, given the premise, which I understand both the United States and the ourt to accept, that state and local officers do have inherent authority to make arrests in aid of fed- eral law, we must ask whether ongress has done anything to curtail or pre-empt that authority in this particular case. Neither the United States nor the ourt goes so far as to say that state and local officers have no power to arrest criminal aliens based on their removability. To do so would fly in the face of 8 U.S. (). Under §(1)–(9), the Federal Government may enter into formal agreements with States and municipalities under which their officers may perform certain duties of a fed- eral immigration officer. But ()(B) makes clear that States and municipalities need not enter into those agreements “otherwise to cooperate in the identifica- tion, apprehension, detention, or removal of aliens not ite as: 5 U. S. (2012) 17 Opinion of ALITO, J. lawfully present in the United States.” It goes without saying that state and local officers could not provide meaningful cooperation in the apprehension, detention, and ultimate removal of criminal aliens without some power to make arrests. Although () contemplates state and local authority to apprehend criminal aliens for the purpose of removal, the ourt rejects out of hand any possibility that officers could exercise that authority without federal direction. Despite acknowledging that there is “ambiguity as to what constitutes cooperation,” the ourt says that “no coherent understanding of the term would incorporate the unilateral decision of state officers to arrest an alien for being removable absent any request, approval, or other instruction from the Federal Government.” Ante, at 18. The ourt adopts an unnecessarily stunted view of coop- eration. No one would say that a state or local officer has failed to cooperate by making an on-the-spot arrest to enforce federal law. Unsolicited aid is not necessarily uncooperative. To be sure, were an officer to persist in making an ar- rest that the officer knows is unwanted, such conduct would not count as cooperation. But nothing in the rele- vant federal statutes suggests that ongress does not want aliens who have committed removable offenses to be arrested.2 To the contrary, commands that the Executive “shall take into custody any alien” who is de- portable for having committed a specified offense. And substantially limits the circumstances under which the Executive has discretion to release aliens held in custody under paragraph (1). So if an officer arrests an alien who is removable for having committed one of the crimes listed in the Federal Government is —————— 2 That goes for the Executive Branch as well, which has made the apprehension and removal of criminal aliens a priority. See App. 8. 18 ARIZONA v. UNITED STATES Opinion of ALITO, J. obligated to take the alien into custody. That ongress generally requires the Executive to take custody of criminal aliens casts considerable doubt on the ourt’s concern that is an obstacle to the Federal Gov- ernment’s exercise of discretion. The ourt claims that the authority conferred by “could be exercised without any input from the Federal Government about whether an arrest is warranted in a particular case” and that this “would allow the State to achieve its own immigration policy,” resulting in the “unnecessary harassment of some aliens whom federal officials determine should not be removed.” Ante, at 17. But belies the ourt’s fear. In many, if not most, cases involving aliens who are removable for having committed criminal offenses, on- gress has left the Executive no discretion but to take the alien into custody. State and local officers do not frus- trate the removal process by arresting criminal The Executive retains complete discretion over whether those aliens are ultimately removed. And once the Fed- eral Government makes a determination that a particular criminal alien will not be removed, then Arizona officers are presumably no longer authorized under to arrest the alien. To be sure, not all offenses for which officers have au- thority to arrest under are covered by As for aliens who have committed those offenses, ongress has given the Executive discretion under over whether to arrest and detain them pending a decision on removal. But the mere fact that the Executive has en- forcement discretion cannot mean that the exercise of state police powers in support of federal law is automati- cally pre-empted. If that were true, then state and local officers could never make arrests to enforce any federal statute because the Executive always has at least some general discretion over the enforcement of federal law as a practical matter. But even assuming that the express ite as: 5 U. S. (2012) 19 Opinion of ALITO, J. statutory grant of discretion in somehow indi- cates a congressional desire to pre-empt unilateral state and local authority to arrest criminal aliens covered by that provision, is not pre-empted on its face given its substantial overlap with It bears emphasizing that does not mandate the warrantless apprehension of all aliens who have commit- ted crimes for which they are removable. Instead, it only grants state and local officers permission to make such arrests. The trouble with this premature, facial challenge is that it affords Arizona no opportunity to implement its law in a way that would avoid any potential conflicts with federal law. For example, Arizona could promulgate guidelines or regulations limiting the arrest authority conferred by to the crimes specified in And to the extent is unclear about which exact crimes are covered,3 Arizona could go even further and identify specific crimes for which there is no doubt an alien would be removable. The point is that there are plenty of permissible applications of and the ourt should not invalidate the statute at this point without at least some indication that Arizona has implemented it in a manner at odds with ongress’ clear and manifest intent. We have said that a facial challenge to a statute is “the most difficult challenge to mount successfully” because “the challenger must establish that no set of circumstances exists under which the [statute] would be valid.” United ; see also 1, n. 6 (applying the Salerno standard in a pre-emption case). As to I do not believe the United States has carried that —————— 3I readily admit that it can be difficult to determine whether a particular conviction will necessarily make an alien removable. See Padilla v. Kentucky, 9 U.S. (20) (ALITO, J., concurring in judgment) (slip op., ). 20 ARIZONA v. UNITED STATES Opinion of ALITO, J. heavy burden. B Finally, the ourt tells us that conflicts with federal law because it provides state and local officers with “even greater authority to arrest aliens on the basis of possible removability than ongress has given to trained federal immigration officers.” Ante, at 16–17. The ourt points to 8 U.S. which empowers “authorized” offi- cers and employees of IE to make arrests without a fed- eral warrant if “the alien so arrested is in the United States in violation of any [immigration] law or regulation and is likely to escape before a warrant can be obtained for his arrest.” Because would allow Arizona officers to make arrests “regardless of whether a federal warrant has issued or the alien is likely to escape,” ante, at 17, the ourt concludes that is an obstacle to the accomplish- ment of ongress’ objectives. But is an obstacle only to the extent it conflicts with ongress’ clear and manifest intent to preclude state and local officers from making arrests except where a federal warrant has issued or the arrestee is likely to escape. By granting warrantless arrest authority to federal officers, ongress has not mani- fested an unmistakable intent to strip state and local officers of their warrantless arrest authority under state law. Likewise, limitations on federal arrest authority do not mean that the arrest authority of state and local officers must be similarly limited. Our opinion in 357 U.S. 301, is instructive. In that case, a District of olumbia officer, accompanied by a federal officer, made an arrest based on a suspected federal narcotics offense. at 303–304. The federal officer did not have statutory au- thorization to arrest without a warrant, but the local officer did. 05. We held that District of olumbia law dictated the lawfulness of the arrest. 05–306. ite as: 5 U. S. (2012) 21 Opinion of ALITO, J. Where a state or local officer makes a warrantless arrest to enforce federal law, we said that “the lawfulness of the arrest without warrant is to be determined by reference to state law.” 05. Under an Arizona officer may be authorized to make an arrest that a federal officer may not be authorized to make under As makes clear, that fact alone does not render arrests by state or local officers pursuant to unlawful. Nor does it manifest a clear congressional intent to displace the exer- cise of state police powers that are brought to bear in aid of federal law	1,961
Justice Ginsburg	majority	false	Sole v. Wyner	2007-06-04	null	https://www.courtlistener.com/opinion/145724/sole-v-wyner/	https://www.courtlistener.com/api/rest/v3/clusters/145724/	2,007	2006-051	1	9	0	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, 95 S. Ct. 1612, 44 L. Ed. 2d 141 (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, 2192 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.[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.[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 (S.D.Fla.2003). Pointing to the May 1995 settlement laying out "agreed-upon manner restrictions," the 2193 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 2194 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. ___, 127 S. Ct. 1055, 166 L. Ed. 2d 797 (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, 109 S. Ct. 1486, 103 L. Ed. 2d 866 (1989). See Hewitt v. Helms, 482 U.S. 755, 760, 107 S. Ct. 2672, 96 L. Ed. 2d 654 (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, 100 S. Ct. 2570, 65 L. Ed. 2d 653 (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, 121 S. Ct. 1835, 149 L. Ed. 2d 855 (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").[3]2195 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.[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, 124 S. Ct. 2783, 159 L. Ed. 2d 690 (2004); Doran v. Salem Inn, Inc., 422 U.S. 922, 931, 95 S. Ct. 2561, 45 L. Ed. 2d 648 (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, 110 S. Ct. 1249, 108 L. Ed. 2d 400 (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 2196 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 2192-2193; 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, 94 S. Ct. 713, 38 L. Ed. 2d 661 (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, 109 S. Ct. 1486. 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 (C.A.9 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. 2197 * * * 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.	For private actions brought under 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 That exception, codified in (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, 2192 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.[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.[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," An exhibit attached to the complaint set out a May 12, 1995 Stipulation for Settlement with DEP. 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," 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 the court granted the preliminary injunction. "The choice," the court explained, "need not be either/or." (S.D.Fla.2003). Pointing to the May 1995 settlement laying out "agreed-upon manner restrictions," the 2193 court determined that "[p]laintiff['s] desired expression and the interests of the state may both be satisfied simultaneously." 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? ms 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" ; see (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. 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. ; 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, Wyner intended to put on another production at MacArthur Beach, again involving nudity. App. 107. After discovery, both sides moved for summary judgment. At the hearing on the motions, held January 21, 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. A week later, having unsuccessfully urged the parties to resolve the case as "[they] did before in [the 1995] settlement," 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." Case No. 03-80103-CIV (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, at 45a, and therefore qualified as a prevailing party to that extent, see Case No. 03-80103-CIV (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." 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 2194 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." 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. Wyner would not have qualified for an award of counsel fees, the court recognized, had the preliminary injunction rested on a mistake of law. But it was "new developments," the court said, not any legal error, that accounted for her failure "to achieve actual success on the merits at the permanent injunction stage," 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, ; 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," The likelihood of success shown at the preliminary injunction stage, the court explained, 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," But that demonstration, the court concluded, did not bar an award of fees, because the "new facts" emerged only at the summary judgment stage. We granted certiorari, 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 ; ; cf. Buckhannon Board & Care Home,[3]2195 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.[4] At the preliminary injunction stage, the court is called upon to assess the probability of the plaintiff's ultimate success on the merits. e.g., ; 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. 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. Summary Judgment Order, App. to Pet. for Cert. 34a; Omnibus Order, App. to Brief in Opposition 3a-4a; 179 Fed. Appx., at ; cf. 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 2196 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. ; 254 F.Supp.2d, at 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. Summary Judgment Order, App. to Pet. for Cert. 42a. 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. and n. 4 (reiterating that, "for the sake of the preliminary injunction order," the District Court "assumed content neutrality"). That specification is controlling. Fed. Rule Civ. Proc. 65(d) (requiring every injunction to "set forth the reasons for its issuance" and "be specific in terms"). (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. Texas State Teachers 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." 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. 2197 * * * 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.	1,964
Justice Scalia	majority	false	Thomas v. Chicago Park Dist.	2002-01-15	null	https://www.courtlistener.com/opinion/118476/thomas-v-chicago-park-dist/	https://www.courtlistener.com/api/rest/v3/clusters/118476/	2,002	2001-017	1	9	0	This case presents the question whether a municipal park ordinance requiring individuals to obtain a permit before conducting large-scale events must, consistent with the First Amendment, contain the procedural safeguards described in Freedman v. Maryland, 380 U.S. 51 (1965). 318 I Respondent, the Chicago Park District (Park District), is responsible for operating public parks and other public property in Chicago. See Ill. Comp. Stat., ch. 70, § 1505/7.01 (2001). Pursuant to its authority to "establish by ordinance all needful rules and regulations for the government and protection of parks . . . and other property under its jurisdiction," § 1505/7.02, the Park District adopted an ordinance that requires a person to obtain a permit in order to "conduct a public assembly, parade, picnic, or other event involving more than fifty individuals," or engage in an activity such as "creat[ing] or emit[ting] any Amplified Sound." Chicago Park Dist. Code, ch. VII, §§ C.3.a(1), C.3.a(6). The ordinance provides that "[a]pplications for permits shall be processed in order of receipt," § C.5.a, and the Park District must decide whether to grant or deny an application within 14 days unless, by written notice to the applicant, it extends the period an additional 14 days, § C.5.c. Applications can be denied on any of 13 specified grounds. § C.5.e.[1] If the Park 319 District denies an application, it must clearly set forth in writing the grounds for denial and, where feasible, must propose measures to cure defects in the application. §§ C.5.d, C.5.e. When the basis for denial is prior receipt of a competing application for the same time and place, the Park District must suggest alternative times or places. § C.5.e. An unsuccessful applicant has seven days to file a written appeal to the General Superintendent of the Park District, who must act on the appeal within seven days. § C.6.a. If the General Superintendent affirms a permit denial, the applicant may seek judicial review in state court by common-law certiorari. See Norton v. Nicholson, 187 Ill. App. 3d 1046, 1057-1058, 543 N.E.2d 1053, 1059 (1989). Petitioners have applied to the Park District on several occasions for permits to hold rallies advocating the legalization 320 of marijuana. The Park District has granted some permits and denied others. Not satisfied, petitioners filed an action pursuant to 42 U.S. C. § 1983 in the United States District Court for the Northern District of Illinois, alleging, inter alia, that the Park District's ordinance is unconstitutional on its face. The District Court granted summary judgment in favor of the Park District, and the United States Court of Appeals for the Seventh Circuit affirmed. 227 F.3d 921 (2000). We granted certiorari. 532 U.S. 1051 (2001). II The First Amendment's guarantee of "the freedom of speech, or of the press" prohibits a wide assortment of government restraints upon expression, but the core abuse against which it was directed was the scheme of licensing laws implemented by the monarch and Parliament to contain the "evils" of the printing press in 16th- and 17-century England. The Printing Act of 1662 had "prescribed what could be printed, who could print, and who could sell." Mayton, Toward a Theory of First Amendment Process: Injunctions of Speech, Subsequent Punishment, and the Costs of the Prior Restraint Doctrine, 67 Cornell L. Rev. 245, 248 (1982). It punished the publication of any book or pamphlet without a license and required that all works be submitted for approval to a government official, who wielded broad authority to suppress works that he found to be "`heretical, seditious, schismatical, or offensive.' " F. Siebert, Freedom of the Press in England, 1476-1776, p. 240 (1952). The English licensing system expired at the end of the 17th century, but the memory of its abuses was still vivid enough in colonial times that Blackstone warned against the "restrictive power" of such a "licenser"an administrative official who enjoyed unconfined authority to pass judgment on the content of speech. 4 W. Blackstone, Commentaries on the Laws of England 152 (1769). 321 In Freedman v. Maryland, 380 U.S. 51 (1965), we confronted a state law that enacted a strikingly similar system of prior restraint for motion pictures. It required that every motion picture film be submitted to a Board of Censors before the film was shown anywhere in the State. The board enjoyed authority to reject films that it considered "`obscene' " or that "`tend[ed], in the judgment of the Board, to debase or corrupt morals or incite to crimes,' " characteristics defined by the statute in broad terms. Id., at 52, n. 2. The statute punished the exhibition of a film not submitted to the board for advance approval, even where the film would have received a license had it been properly submitted. It was no defense that the content of the film was protected by the First Amendment. We recognized in Freedman that a scheme conditioning expression on a licensing body's prior approval of content "presents peculiar dangers to constitutionally protected speech." Id., at 57. "[T]he censor's business is to censor," ibid., and a licensing body likely will overestimate the dangers of controversial speech when determining, without regard to the film's actual effect on an audience, whether speech is likely "`to incite' " or to "`corrupt [the] morals,' " id., at 52-53, n. 2. Cf. Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 561, and n. 11 (1975). In response to these grave "dangers of a censorship system," Freedman, supra, at 58, we held that a film licensing process must contain certain procedural safeguards in order to avoid constituting an invalid prior restraint: "(1) any restraint prior to judicial review can be imposed only for a specified brief period during which the status quo must be maintained; (2) expeditious judicial review of that decision must be available; and (3) the censor must bear the burden of going to court to suppress the speech and must bear the burden of proof once in court." FW/PBS, Inc. v. Dallas, 493 U.S. 215, 227 (1990) (principal opinion of O'Connor, J., joined by Stevens and Kennedy, JJ.) (citing Freedman, supra, at 58-60). 322 Petitioners contend that the Park District, like the Board of Censors in Freedman, must initiate litigation every time it denies a permit and that the ordinance must specify a deadline for judicial review of a challenge to a permit denial. We reject those contentions. Freedman is inapposite because the licensing scheme at issue here is not subjectmatter censorship but content-neutral time, place, and manner regulation of the use of a public forum. The Park District's ordinance does not authorize a licensor to pass judgment on the content of speech: None of the grounds for denying a permit has anything to do with what a speaker might say. Indeed, the ordinance (unlike the classic censorship scheme) is not even directed to communicative activity as such, but rather to all activity conducted in a public park. The picnicker and soccer player, no less than the political activist or parade marshal, must apply for a permit if the 50-person limit is to be exceeded. And the object of the permit system (as plainly indicated by the permissible grounds for permit denial) is not to exclude communication of a particular content, but to coordinate multiple uses of limited space, to assure preservation of the park facilities, to prevent uses that are dangerous, unlawful, or impermissible under the Park District's rules, and to assure financial accountability for damage caused by the event. As the Court of Appeals well put it: "[T]o allow unregulated access to all comers could easily reduce rather than enlarge the park's utility as a forum for speech." 227 F.3d, at 924. We have never required that a content-neutral permit scheme regulating speech in a public forum adhere to the procedural requirements set forth in Freedman.[2] "A licensing standard which gives an official authority to censor the content of a speech differs to to coelo from one limited by its terms, or by nondiscriminatory practice, to considerations 323 of public safety and the like." Niemotko v. Maryland, 340 U.S. 268, 282 (1951) (Frankfurter, J., concurring in result). "[T]he [permit] required is not the kind of prepublication license deemed a denial of liberty since the time of John Milton but a ministerial, police routine for adjusting the rights of citizens so that the opportunity for effective freedom of speech may be preserved." Poulos v. New Hampshire, 345 U.S. 395, 403 (1953). Regulations of the use of a public forum that ensure the safety and convenience of the people are not "inconsistent with civil liberties but . . . [are] one of the means of safeguarding the good order upon which [civil liberties] ultimately depend." Cox v. New Hampshire, 312 U.S. 569, 574 (1941). Such a traditional exercise of authority does not raise the censorship concerns that prompted us to impose the extraordinary procedural safeguards on the film licensing process in Freedman. III Of course even content-neutral time, place, and manner restrictions can be applied in such a manner as to stifle free expression. Where the licensing official enjoys unduly broad discretion in determining whether to grant or deny a permit, there is a risk that he will favor or disfavor speech based on its content. See Forsyth County v. Nationalist Movement, 505 U.S. 123, 131 (1992). We have thus required that a time, place, and manner regulation contain adequate standards to guide the official's decision and render it subject to effective judicial review. See Niemotko, supra, at 271. Petitioners contend that the Park District's ordinance fails this test.[3] 324 We think not. As we have described, the Park District may deny a permit only for one or more of the reasons set forth in the ordinance. See n. 1, supra. It may deny, for example, when the application is incomplete or contains a material falsehood or misrepresentation; when the applicant has damaged Park District property on prior occasions and has not paid for the damage; when a permit has been granted to an earlier applicant for the same time and place; when the intended use would present an unreasonable danger to the health or safety of park users or Park District employees; or when the applicant has violated the terms of a prior permit. See Chicago Park Dist. Code, ch. VII, § C.5.e. Moreover, the Park District must process applications within 28 days, § C.5.c, and must clearly explain its reasons for any denial, § C.5.e. These grounds are reasonably specific and objective, and do not leave the decision "to the whim of the administrator." Forsyth County, 505 U. S., at 133. They provide "`narrowly drawn, reasonable and definite standards' " to guide the licensor's determination, ibid. (quoting Niemotko, supra, at 271). And they are enforceable on reviewfirst by appeal to the General Superintendent of the Park District, see Chicago Park Dist. Code, ch. VII, § C.6.a, and then by writ of common-law certiorari in the Illinois courts, see Norton v. Nicholson, 187 Ill. App. 3d 1046, 543 N.E.2d 1053 (1989), which provides essentially the same type of review as that provided by the Illinois administrative procedure act, see Nowicki v. Evanston Fair Housing Review Bd., 62 Ill. 2d 11, 14, 338 N.E.2d 186, 188 (1975). Petitioners contend that the criteria set forth in the ordinance are insufficiently precise because they are described as grounds on which the Park District "may" deny a permit, rather than grounds on which it must do so. This, they contend, allows the Park District to waive the permit requirements for some favored speakers, while insisting upon them for others. That is certainly not the intent of the ordinance, which the Park District has reasonably interpreted 325 to permit overlooking only those inadequacies that, under the circumstances, do no harm to the policies furthered by the application requirements. See Tr. of Oral Arg. 31-32. Granting waivers to favored speakers (or, more precisely, denying them to disfavored speakers) would of course be unconstitutional, but we think that this abuse must be dealt with if and when a pattern of unlawful favoritism appears, rather than by insisting upon a degree of rigidity that is found in few legal arrangements. On petitioners' theory, every obscenity law, or every law placing limits upon political expenditures, contains a constitutional flaw, since it merely permits, but does not require, prosecution. The prophylaxis achieved by insisting upon a rigid, no-waiver application of the ordinance requirements would be far outweighed, we think, by the accompanying senseless prohibition of speech (and of other activity in the park) by organizations that fail to meet the technical requirements of the ordinance but for one reason or another pose no risk of the evils that those requirements are designed to avoid. On balance, we think the permissive nature of the ordinance furthers, rather than constricts, free speech. * * * Because the Park District's ordinance is not subject to Freedman `s procedural requirements, we do not reach one of the questions on which we granted certiorari, and on which the Courts of Appeals are divided: whether the requirement of prompt judicial review means a prompt judicial determination or the prompt commencement of judicial proceedings. Compare Nightclubs, Inc. v. Paducah, 202 F.3d 884, 892-893 (CA6 2000); Baby Tam & Co. v. Las Vegas, 154 F.3d 1097, 1101 (CA9 1998); 11126 Baltimore Blvd., Inc. v. Prince George's County, 58 F.3d 988, 998-1001 (CA4 1995) (en banc), with Boss Capital, Inc. v. Casselberry, 187 F.3d 1251, 1255-1257 (CA11 1999); TK's Video, Inc. v. Denton County, 24 F.3d 705, 709 (CA5 1994); Graff v. Chicago, 9 *326 F. 3d 1309, 1324-1325 (CA7 1993) (en banc); Jews for Jesus, Inc. v. Massachusetts Bay Transp. Authority, 984 F.2d 1319, 1327 (CA1 1993). For the foregoing reasons, we affirm the judgment of the Court of Appeals. It is so ordered.	This case presents the question whether a municipal park ordinance requiring individuals to obtain a permit before conducting large-scale events must, consistent with the First Amendment, contain the procedural safeguards described in 38 I Respondent, the Chicago Park District (Park District), is responsible for operating public parks and other public property in Chicago. See Ill. Comp. Stat., ch. 70, 505/7.0 Pursuant to its authority to "establish by ordinance all needful rules and regulations for the government and protection of parks and other property under its jurisdiction," 505/7.02, the Park District adopted an ordinance that requires a person to obtain a permit in order to "conduct a public assembly, parade, picnic, or other event involving more than fifty individuals," or engage in an activity such as "creat[ing] or emit[ting] any Amplified Sound." Chicago Park Dist. Code, ch. VII, C.3.a(), C.3.a(6). The ordinance provides that "[a]pplications for permits shall be processed in order of receipt," C.5.a, and the Park District must decide whether to grant or deny an application within 4 days unless, by written notice to the applicant, it extends the period an additional 4 days, C.5.c. Applications can be denied on any of 3 specified grounds. C.5.e.[] If the Park 39 District denies an application, it must clearly set forth in writing the grounds for denial and, where feasible, must propose measures to cure defects in the application. C.5.d, C.5.e. When the basis for denial is prior receipt of a competing application for the same time and place, the Park District must suggest alternative times or places. C.5.e. An unsuccessful applicant has seven days to file a written appeal to the General Superintendent of the Park District, who must act on the appeal within seven days. C.6.a. If the General Superintendent affirms a permit denial, the applicant may seek judicial review in state court by common-law certiorari. See Petitioners have applied to the Park District on several occasions for permits to hold rallies advocating the legalization 320 of marijuana. The Park District has granted some permits and denied others. Not satisfied, petitioners filed an action pursuant to 42 U.S. C. 983 in the United States District Court for the Northern District of Illinois, alleging, inter alia, that the Park District's ordinance is unconstitutional on its face. The District Court granted summary judgment in favor of the Park District, and the United States Court of Appeals for the Seventh Circuit affirmed. We granted certiorari. II The First Amendment's guarantee of "the freedom of speech, or of the press" prohibits a wide assortment of government restraints upon expression, but the core abuse against which it was directed was the scheme of licensing laws implemented by the monarch and Parliament to contain the "evils" of the printing press in 6th- and 7-century England. The Printing Act of 662 had "prescribed what could be printed, who could print, and who could sell." Mayton, Toward a Theory of First Amendment Process: Injunctions of Speech, Subsequent Punishment, and the Costs of the Prior Restraint Doctrine, It punished the publication of any book or pamphlet without a license and required that all works be submitted for approval to a government official, who wielded broad authority to suppress works that he found to be "`heretical, seditious, schismatical, or offensive.' " F. Siebert, Freedom of the Press in England, 476-776, p. 240 (952). The English licensing system expired at the end of the 7th century, but the memory of its abuses was still vivid enough in colonial times that Blackstone warned against the "restrictive power" of such a "licenser"an administrative official who enjoyed unconfined authority to pass judgment on the content of speech. 4 W. Blackstone, Commentaries on the Laws of England 52 (769). 32 In we confronted a state law that enacted a strikingly similar system of prior restraint for motion pictures. It required that every motion picture film be submitted to a Board of Censors before the film was shown anywhere in the State. The board enjoyed authority to reject films that it considered "`obscene' " or that "`tend[ed], in the judgment of the Board, to debase or corrupt morals or incite to crimes,' " characteristics defined by the statute in broad terms. The statute punished the exhibition of a film not submitted to the board for advance approval, even where the film would have received a license had it been properly submitted. It was no defense that the content of the film was protected by the First Amendment. We recognized in that a scheme conditioning expression on a licensing body's prior approval of content "presents peculiar dangers to constitutionally protected speech." "[T]he censor's business is to censor," ib and a licensing body likely will overestimate the dangers of controversial speech when determining, without regard to the film's actual effect on an audience, whether speech is likely "`to incite' " or to "`corrupt [the] morals,' " Cf. Southeastern Promotions, In response to these grave "dangers of a censorship system," we held that a film licensing process must contain certain procedural safeguards in order to avoid constituting an invalid prior restraint: "() any restraint prior to judicial review can be imposed only for a specified brief period during which the status quo must be maintained; (2) expeditious judicial review of that decision must be available; and (3) the censor must bear the burden of going to court to suppress the speech and must bear the burden of proof once in court." FW/PBS, (citing -60). 322 Petitioners contend that the Park District, like the Board of Censors in must initiate litigation every time it denies a permit and that the ordinance must specify a deadline for judicial review of a challenge to a permit denial. We reject those contentions. is inapposite because the licensing scheme at issue here is not subjectmatter censorship but content-neutral time, place, and manner regulation of the use of a public forum. The Park District's ordinance does not authorize a licensor to pass judgment on the content of speech: None of the grounds for denying a permit has anything to do with what a speaker might say. Indeed, the ordinance (unlike the classic censorship scheme) is not even directed to communicative activity as such, but rather to all activity conducted in a public park. The picnicker and soccer player, no less than the political activist or parade marshal, must apply for a permit if the 50-person limit is to be exceeded. And the object of the permit system (as plainly indicated by the permissible grounds for permit denial) is not to exclude communication of a particular content, but to coordinate multiple uses of limited space, to assure preservation of the park facilities, to prevent uses that are dangerous, unlawful, or impermissible under the Park District's rules, and to assure financial accountability for damage caused by the event. As the Court of Appeals well put it: "[T]o allow unregulated access to all comers could easily reduce rather than enlarge the park's utility as a forum for speech." F.3d, at 924. We have never required that a content-neutral permit scheme regulating speech in a public forum adhere to the procedural requirements set forth in[2] "A licensing standard which gives an official authority to censor the content of a speech differs to to coelo from one limited by its terms, or by nondiscriminatory practice, to considerations 323 of public safety and the like." "[T]he [permit] required is not the kind of prepublication license deemed a denial of liberty since the time of John Milton but a ministerial, police routine for adjusting the rights of citizens so that the opportunity for effective freedom of speech may be preserved." Regulations of the use of a public forum that ensure the safety and convenience of the people are not "inconsistent with civil liberties but [are] one of the means of safeguarding the good order upon which [civil liberties] ultimately depend." Such a traditional exercise of authority does not raise the censorship concerns that prompted us to impose the extraordinary procedural safeguards on the film licensing process in III Of course even content-neutral time, place, and manner restrictions can be applied in such a manner as to stifle free expression. Where the licensing official enjoys unduly broad discretion in determining whether to grant or deny a permit, there is a risk that he will favor or disfavor speech based on its content. See Forsyth We have thus required that a time, place, and manner regulation contain adequate standards to guide the official's decision and render it subject to effective judicial review. See Petitioners contend that the Park District's ordinance fails this test.[3] 324 We think not. As we have described, the Park District may deny a permit only for one or more of the reasons set forth in the ordinance. See n. It may deny, for example, when the application is incomplete or contains a material falsehood or misrepresentation; when the applicant has damaged Park District property on prior occasions and has not paid for the damage; when a permit has been granted to an earlier applicant for the same time and place; when the intended use would present an unreasonable danger to the health or safety of park users or Park District employees; or when the applicant has violated the terms of a prior permit. See Chicago Park Dist. Code, ch. VII, C.5.e. Moreover, the Park District must process applications within 28 days, C.5.c, and must clearly explain its reasons for any denial, C.5.e. These grounds are reasonably specific and objective, and do not leave the decision "to the whim of the administrator." Forsyth 505 U. S., at 33. They provide "`narrowly drawn, reasonable and definite standards' " to guide the licensor's determination, (quoting ). And they are enforceable on reviewfirst by appeal to the General Superintendent of the Park District, see Chicago Park Dist. Code, ch. VII, C.6.a, and then by writ of common-law certiorari in the Illinois courts, see which provides essentially the same type of review as that provided by the Illinois administrative procedure act, see 62 Ill. 2d 4, 338 N.E.2d 86, 88 Petitioners contend that the criteria set forth in the ordinance are insufficiently precise because they are described as grounds on which the Park District "may" deny a permit, rather than grounds on which it must do so. This, they contend, allows the Park District to waive the permit requirements for some favored speakers, while insisting upon them for others. That is certainly not the intent of the ordinance, which the Park District has reasonably interpreted 325 to permit overlooking only those inadequacies that, under the circumstances, do no harm to the policies furthered by the application requirements. See Tr. of Oral Arg. 3-32. Granting waivers to favored speakers (or, more precisely, denying them to disfavored speakers) would of course be unconstitutional, but we think that this abuse must be dealt with if and when a pattern of unlawful favoritism appears, rather than by insisting upon a degree of rigidity that is found in few legal arrangements. On petitioners' theory, every obscenity law, or every law placing limits upon political expenditures, contains a constitutional flaw, since it merely permits, but does not require, prosecution. The prophylaxis achieved by insisting upon a rigid, no-waiver application of the ordinance requirements would be far outweighed, we think, by the accompanying senseless prohibition of speech (and of other activity in the park) by organizations that fail to meet the technical requirements of the ordinance but for one reason or another pose no risk of the evils that those requirements are designed to avoid. On balance, we think the permissive nature of the ordinance furthers, rather than constricts, free speech. * * * Because the Park District's ordinance is not subject to `s procedural requirements, we do not reach one of the questions on which we granted certiorari, and on which the Courts of Appeals are divided: whether the requirement of prompt judicial review means a prompt judicial determination or the prompt commencement of judicial proceedings. Compare Nightclubs, ; Baby Tam & 54 F.3d 097, 0 (CA9 998); 26 Baltimore Blvd., Inc. v. Prince George's 998-00 (CA4 995) with Boss Capital, 87 F.3d 25, 255-257 (CA 999); TK's Video, Inc. v. Denton (CA5 994); 326 F. 3d 309, 324-325 (CA7 993) ; Jews for Jesus, 984 F.2d 9, 327 (CA 993). For the foregoing reasons, we affirm the judgment of the Court of Appeals. It is so ordered.	1,976
Justice Stevens	majority	false	BMW of North America, Inc. v. Gore	1996-05-28	null	https://www.courtlistener.com/opinion/118026/bmw-of-north-america-inc-v-gore/	https://www.courtlistener.com/api/rest/v3/clusters/118026/	1,996	1995-052	1	5	4	The Due Process Clause of the Fourteenth Amendment prohibits a State from imposing a "`grossly excessive'" punishment on a tortfeasor. TXO Production Corp. v. Alliance Resources Corp., 509 U.S. 443, 454 (1993) (and cases cited). The wrongdoing involved in this case was the decision by a national distributor of automobiles not to advise its dealers, and hence their customers, of predelivery damage to new cars when the cost of repair amounted to less than 3 percent of the car's suggested retail price. The question presented 563 is whether a $2 million punitive damages award to the purchaser of one of these cars exceeds the constitutional limit. I In January 1990, Dr. Ira Gore, Jr. (respondent), purchased a black BMW sports sedan for $40,750.88 from an authorized BMW dealer in Birmingham, Alabama. After driving the car for approximately nine months, and without noticing any flaws in its appearance, Dr. Gore took the car to "Slick Finish," an independent detailer, to make it look "`snazzier than it normally would appear.'" 646 So. 2d 619, 621 (Ala. 1994). Mr. Slick, the proprietor, detected evidence that the car had been repainted.[1] Convinced that he had been cheated, Dr. Gore brought suit against petitioner BMW of North America (BMW), the American distributor of BMW automobiles.[2] Dr. Gore alleged, inter alia, that the failure to disclose that the car had been repainted constituted suppression of a material fact.[3] The complaint prayed for $500,000 in compensatory and punitive damages, and costs. At trial, BMW acknowledged that it had adopted a nationwide policy in 1983 concerning cars that were damaged in the course of manufacture or transportation. If the cost of repairing the damage exceeded 3 percent of the car's suggested 564 retail price, the car was placed in company service for a period of time and then sold as used. If the repair cost did not exceed 3 percent of the suggested retail price, however, the car was sold as new without advising the dealer that any repairs had been made. Because the $601.37 cost of repainting Dr. Gore's car was only about 1.5 percent of its suggested retail price, BMW did not disclose the damage or repair to the Birmingham dealer. Dr. Gore asserted that his repainted car was worth less than a car that had not been refinished. To prove his actual damages of $4,000, he relied on the testimony of a former BMW dealer, who estimated that the value of a repainted BMW was approximately 10 percent less than the value of a new car that had not been damaged and repaired.[4] To support his claim for punitive damages, Dr. Gore introduced evidence that since 1983 BMW had sold 983 refinished cars as new, including 14 in Alabama, without disclosing that the cars had been repainted before sale at a cost of more than $300 per vehicle.[5] Using the actual damage estimate of $4,000 per vehicle, Dr. Gore argued that a punitive award of $4 million would provide an appropriate penalty for selling approximately 1,000 cars for more than they were worth. In defense of its disclosure policy, BMW argued that it was under no obligation to disclose repairs of minor damage to new cars and that Dr. Gore's car was as good as a car with the original factory finish. It disputed Dr. Gore's assertion that the value of the car was impaired by the repainting and argued that this good-faith belief made a punitive award inappropriate. BMW also maintained that transactions in jurisdictions other than Alabama had no relevance to Dr. Gore's claim. 565 The jury returned a verdict finding BMW liable for compensatory damages of $4,000. In addition, the jury assessed $4 million in punitive damages, based on a determination that the nondisclosure policy constituted "gross, oppressive or malicious" fraud.[6] See Ala. Code §§ 6-11-20, 6-11-21 (1993). BMW filed a post-trial motion to set aside the punitive damages award. The company introduced evidence to establish that its nondisclosure policy was consistent with the laws of roughly 25 States defining the disclosure obligations of automobile manufacturers, distributors, and dealers. The most stringent of these statutes required disclosure of repairs costing more than 3 percent of the suggested retail price; none mandated disclosure of less costly repairs.[7] Relying on these statutes, BMW contended that its conduct was lawful in these States and therefore could not provide the basis for an award of punitive damages. BMW also drew the court's attention to the fact that its nondisclosure policy had never been adjudged unlawful before this action was filed. Just months before Dr. Gore's case went to trial, the jury in a similar lawsuit filed by another Alabama BMW purchaser found that BMW's failure to disclose paint repair constituted fraud. Yates v. BMW of North America, Inc., 642 So. 2d 937 (Ala. 1993).[8] Before the 566 judgment in this case, BMW changed its policy by taking steps to avoid the sale of any refinished vehicles in Alabama and two other States. When the $4 million verdict was returned in this case, BMW promptly instituted a nationwide policy of full disclosure of all repairs, no matter how minor. In response to BMW's arguments, Dr. Gore asserted that the policy change demonstrated the efficacy of the punitive damages award. He noted that while no jury had held the policy unlawful, BMW had received a number of customer complaints relating to undisclosed repairs and had settled some lawsuits.[9] Finally, he maintained that the disclosure statutes of other States were irrelevant because BMW had failed to offer any evidence that the disclosure statutes supplanted, rather than supplemented, existing causes of action for common-law fraud. The trial judge denied BMW's post-trial motion, holding, inter alia, that the award was not excessive. On appeal, the Alabama Supreme Court also rejected BMW's claim that the award exceeded the constitutionally permissible amount. 646 So. 2d 619 (1994). The court's excessiveness inquiry applied the factors articulated in Green Oil Co. v. Hornsby, 539 So. 2d 218, 223-224 (Ala. 1989), and approved in Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 21-22 (1991). 646 So. 2d, at 624-625. Based on its analysis, the court concluded that BMW's conduct was "reprehensible"; the nondisclosure was profitable for the company; the judgment "would not have a substantial impact upon [BMW's] financial position"; the litigation had been expensive; no criminal sanctions had been imposed on BMW for the same conduct; the award of no punitive 567 damages in Yates reflected "the inherent uncertainty of the trial process"; and the punitive award bore a "reasonable relationship" to "the harm that was likely to occur from [BMW's] conduct as well as . . . the harm that actually occurred." 646 So. 2d, at 625-627. The Alabama Supreme Court did, however, rule in BMW's favor on one critical point: The court found that the jury improperly computed the amount of punitive damages by multiplying Dr. Gore's compensatory damages by the number of similar sales in other jurisdictions. Id., at 627. Having found the verdict tainted, the court held that "a constitutionally reasonable punitive damages award in this case is $2,000,000," id., at 629, and therefore ordered a remittitur in that amount.[10] The court's discussion of the amount of its remitted award expressly disclaimed any reliance on "acts that occurred in other jurisdictions"; instead, the court explained that it had used a "comparative analysis" that considered Alabama cases, "along with cases from other jurisdictions, involving the sale of an automobile where the seller misrepresented the condition of the vehicle and the jury awarded punitive damages to the purchaser." [11]Id., at 628. 568 Because we believed that a review of this case would help to illuminate "the character of the standard that will identify unconstitutionally excessive awards" of punitive damages, see Honda Motor Co. v. Oberg, 512 U.S. 415, 420 (1994), we granted certiorari, 513 U.S. 1125 (1995). II Punitive damages may properly be imposed to further a State's legitimate interests in punishing unlawful conduct and deterring its repetition. Gertz v. Robert Welch, Inc., 418 U.S. 323, 350 (1974); Newport v. Fact Concerts, Inc., 453 U.S. 247, 266-267 (1981); Haslip, 499 U. S., at 22. In our federal system, States necessarily have considerable flexibility in determining the level of punitive damages that they will allow in different classes of cases and in any particular case. Most States that authorize exemplary damages afford the jury similar latitude, requiring only that the damages awarded be reasonably necessary to vindicate the State's legitimate interests in punishment and deterrence. See TXO, 509 U. S., at 456; Haslip, 499 U. S., at 21, 22. Only when an award can fairly be categorized as "grossly excessive" in relation to these interests does it enter the zone of arbitrariness that violates the Due Process Clause of the Fourteenth Amendment. Cf. TXO, 509 U. S., at 456. For that reason, the federal excessiveness inquiry appropriately begins with an identification of the state interests that a punitive award is designed to serve. We therefore focus our attention first on the scope of Alabama's legitimate interests in punishing BMW and deterring it from future misconduct. No one doubts that a State may protect its citizens by prohibiting deceptive trade practices and by requiring automobile 569 distributors to disclose presale repairs that affect the value of a new car. But the States need not, and in fact do not, provide such protection in a uniform manner. Some States rely on the judicial process to formulate and enforce an appropriate disclosure requirement by applying principles of contract and tort law.[12] Other States have enacted various forms of legislation that define the disclosure obligations of automobile manufacturers, distributors, and dealers.[13]570 The result is a patchwork of rules representing the diverse policy judgments of lawmakers in 50 States. That diversity demonstrates that reasonable people may disagree about the value of a full disclosure requirement. Some legislatures may conclude that affirmative disclosure requirements are unnecessary because the self-interest of those involved in the automobile trade in developing and maintaining the goodwill of their customers will motivate them to make voluntary disclosures or to refrain from selling cars that do not comply with self-imposed standards. Those legislatures that do adopt affirmative disclosure obligations may take into account the cost of government regulation, choosing to draw a line exempting minor repairs from such a requirement. In formulating a disclosure standard, States may also consider other goals, such as providing a "safe harbor" for automobile manufacturers, distributors, and dealers against lawsuits over minor repairs.[14] We may assume, arguendo, that it would be wise for every State to adopt Dr. Gore's preferred rule, requiring full disclosure of every presale repair to a car, no matter how trivial and regardless of its actual impact on the value of the car. 571 But while we do not doubt that Congress has ample authority to enact such a policy for the entire Nation,[15] it is clear that no single State could do so, or even impose its own policy choice on neighboring States. See Bonaparte v. Tax Court, 104 U.S. 592, 594 (1881) ("No State can legislate except with reference to its own jurisdiction. . . . Each State is independent of all the others in this particular").[16] Similarly, one State's power to impose burdens on the interstate market for automobiles is not only subordinate to the federal power over interstate commerce, Gibbons v. Ogden, 9 Wheat. 1, 194-196 (1824), but is also constrained by the need to respect the interests of other States, see, e. g., Healy v. Beer Institute, 491 U.S. 324, 335-336 (1989) (the Constitution has a "special concern both with the maintenance of a national economic union unfettered by state-imposed limitations on 572 interstate commerce and with the autonomy of the individual States within their respective spheres" (footnote omitted)); Edgar v. MITE Corp., 457 U.S. 624, 643 (1982). We think it follows from these principles of state sovereignty and comity that a State may not impose economic sanctions on violators of its laws with the intent of changing the tortfeasors' lawful conduct in other States.[17] Before this Court Dr. Gore argued that the large punitive damages award was necessary to induce BMW to change the nationwide policy that it adopted in 1983.[18] But by attempting to alter BMW's nationwide policy, Alabama would be infringing on the policy choices of other States. To avoid such encroachment, the economic penalties that a State such as Alabama inflicts on those who transgress its laws, whether the penalties take the form of legislatively authorized fines or judicially imposed punitive damages, must be supported by the State's interest in protecting its own consumers and its own economy. Alabama may insist that BMW adhere to a particular disclosure policy in that State. Alabama does not 573 have the power, however, to punish BMW for conduct that was lawful where it occurred and that had no impact on Alabama or its residents.[19] Nor may Alabama impose sanctions on BMW in order to deter conduct that is lawful in other jurisdictions. In this case, we accept the Alabama Supreme Court's interpretation of the jury verdict as reflecting a computation of the amount of punitive damages "based in large part on conduct that happened in other jurisdictions." 646 So. 2d, at 627. As the Alabama Supreme Court noted, neither the jury nor the trial court was presented with evidence that any of BMW's out-of-state conduct was unlawful. "The only testimony touching the issue showed that approximately 60% of the vehicles that were refinished were sold in states where failure to disclose the repair was not an unfair trade practice." Id., at 627, n. 6.[20] The Alabama Supreme Court therefore properly eschewed reliance on BMW's out-of-state conduct, id., at 628, and based its remitted award solely on 574 conduct that occurred within Alabama.[21] The award must be analyzed in the light of the same conduct, with consideration given only to the interests of Alabama consumers, rather than those of the entire Nation. When the scope of the interest in punishment and deterrence that an Alabama court may appropriately consider is properly limited, it is apparentfor reasons that we shall now addressthat this award is grossly excessive. III Elementary notions of fairness enshrined in our constitutional jurisprudence dictate that a person receive fair notice not only of the conduct that will subject him to punishment, but also of the severity of the penalty that a State may impose.[22] Three guideposts, each of which indicates that BMW did not receive adequate notice of the magnitude of the sanction that Alabama might impose for adhering to the nondisclosure policy adopted in 1983, lead us to the conclusion that 575 the $2 million award against BMW is grossly excessive: the degree of reprehensibility of the nondisclosure; the disparity between the harm or potential harm suffered by Dr. Gore and his punitive damages award; and the difference between this remedy and the civil penalties authorized or imposed in comparable cases. We discuss these considerations in turn. Degree of Reprehensibility Perhaps the most important indicium of the reasonableness of a punitive damages award is the degree of reprehensibility of the defendant's conduct.[23] As the Court stated nearly 150 years ago, exemplary damages imposed on a defendant should reflect "the enormity of his offense." Day v. Woodworth, 13 How. 363, 371 (1852). See also St. Louis, I. M. & S. R. Co. v. Williams, 251 U.S. 63, 66-67 (1919) (punitive award may not be "wholly disproportioned to the offense"); Browning-Ferris Industries of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 301 (1989) (O'Connor, J., concurring in part and dissenting in part) (reviewing court "should examine the gravity of the defendant's conduct and the harshness of the award of punitive damages").[24] This principle reflects the accepted view that some wrongs are more blameworthy than others. Thus, we have said that 576 "nonviolent crimes are less serious than crimes marked by violence or the threat of violence." Solem v. Helm, 463 U.S. 277, 292-293 (1983). Similarly, "trickery and deceit," TXO, 509 U. S., at 462, are more reprehensible than negligence. In TXO, both the West Virginia Supreme Court and the Justices of this Court placed special emphasis on the principle that punitive damages may not be "grossly out of proportion to the severity of the offense." [25]Id., at 453, 462. Indeed, for Justice Kennedy, the defendant's intentional malice was the decisive element in a "close and difficult" case. Id., at 468.[26] In this case, none of the aggravating factors associated with particularly reprehensible conduct is present. The harm BMW inflicted on Dr. Gore was purely economic in nature. The presale refinishing of the car had no effect on its performance or safety features, or even its appearance for at least nine months after his purchase. BMW's conduct evinced no indifference to or reckless disregard for the health and safety of others. To be sure, infliction of economic injury, especially when done intentionally through affirmative acts of misconduct, id., at 453, or when the target is financially vulnerable, can warrant a substantial penalty. But this observation does not convert all acts that cause economic harm into torts that are sufficiently reprehensible to justify a significant sanction in addition to compensatory damages. Dr. Gore contends that BMW's conduct was particularly reprehensible because nondisclosure of the repairs to his car formed part of a nationwide pattern of tortious conduct. Certainly, evidence that a defendant has repeatedly engaged in prohibited conduct while knowing or suspecting that it was unlawful would provide relevant support for an argument 577 that strong medicine is required to cure the defendant's disrespect for the law. See id., at 462, n. 28. Our holdings that a recidivist may be punished more severely than a first offender recognize that repeated misconduct is more reprehensible than an individual instance of malfeasance. See Gryger v. Burke, 334 U.S. 728, 732 (1948). In support of his thesis, Dr. Gore advances two arguments. First, he asserts that the state disclosure statutes supplement, rather than supplant, existing remedies for breach of contract and common-law fraud. Thus, according to Dr. Gore, the statutes may not properly be viewed as immunizing from liability the nondisclosure of repairs costing less than the applicable statutory threshold. Brief for Respondent 18-19. Second, Dr. Gore maintains that BMW should have anticipated that its failure to disclose similar repair work could expose it to liability for fraud. Id., at 4-5. We recognize, of course, that only state courts may authoritatively construe state statutes. As far as we are aware, at the time this action was commenced no state court had explicitly addressed whether its State's disclosure statute provides a safe harbor for nondisclosure of presumptively minor repairs or should be construed instead as supplementing common-law duties.[27] A review of the text of the statutes, 578 however, persuades us that in the absence of a statecourt determination to the contrary, a corporate executive could reasonably interpret the disclosure requirements as establishing safe harbors. In California, for example, the disclosure statute defines "material" damage to a motor vehicle as damage requiring repairs costing in excess of 3 percent of the suggested retail price or $500, whichever is greater. Cal. Veh. Code Ann. § 9990 (West Supp. 1996). The Illinois statute states that in cases in which disclosure is not required, "nondisclosure does not constitute a misrepresentation or omission of fact." Ill. Comp. Stat., ch. 815, § 710/5 (1994).[28] Perhaps the statutes may also be interpreted in another way. We simply emphasize that the record contains no evidence that BMW's decision to follow a disclosure policy that coincided with the strictest extant state statute was sufficiently reprehensible to justify a $2 million award of punitive damages. 579 Dr. Gore's second argument for treating BMW as a recidivist is that the company should have anticipated that its actions would be considered fraudulent in some, if not all, jurisdictions. This contention overlooks the fact that actionable fraud requires a material misrepresentation or omission.[29] This qualifier invites line-drawing of just the sort engaged in by States with disclosure statutes and by BMW. We do not think it can be disputed that there may exist minor imperfections in the finish of a new car that can be repaired (or indeed, left unrepaired) without materially affecting the car's value.[30] There is no evidence that BMW acted in bad faith when it sought to establish the appropriate line between presumptively minor damage and damage requiring disclosure to purchasers. For this purpose, BMW could reasonably rely on state disclosure statutes for guidance. In this regard, it is also significant that there is no evidence that BMW persisted in a course of conduct after it had been adjudged unlawful on even one occasion, let alone repeated occasions.[31] Finally, the record in this case discloses no deliberate false statements, acts of affirmative misconduct, or concealment of evidence of improper motive, such as were present in Haslip and TXO. Haslip, 499 U. S., at 5; TXO, 509 U. S., at 453. We accept, of course, the jury's finding that BMW suppressed 580 a material fact which Alabama law obligated it to communicate to prospective purchasers of repainted cars in that State. But the omission of a material fact may be less reprehensible than a deliberate false statement, particularly when there is a good-faith basis for believing that no duty to disclose exists. That conduct is sufficiently reprehensible to give rise to tort liability, and even a modest award of exemplary damages does not establish the high degree of culpability that warrants a substantial punitive damages award. Because this case exhibits none of the circumstances ordinarily associated with egregiously improper conduct, we are persuaded that BMW's conduct was not sufficiently reprehensible to warrant imposition of a $2 million exemplary damages award. Ratio The second and perhaps most commonly cited indicium of an unreasonable or excessive punitive damages award is its ratio to the actual harm inflicted on the plaintiff. See TXO, 509 U. S., at 459; Haslip, 499 U. S., at 23. The principle that exemplary damages must bear a "reasonable relationship" to compensatory damages has a long pedigree.[32] Scholars have identified a number of early English statutes authorizing the 581 award of multiple damages for particular wrongs. Some 65 different enactments during the period between 1275 and 1753 provided for double, treble, or quadruple damages.[33] Our decisions in both Haslip and TXO endorsed the proposition that a comparison between the compensatory award and the punitive award is significant. In Haslip we concluded that even though a punitive damages award of "more than 4 times the amount of compensatory damages" might be "close to the line," it did not "cross the line into the area of constitutional impropriety." 499 U.S., at 23-24. TXO, following dicta in Haslip, refined this analysis by confirming that the proper inquiry is "`whether there is a reasonable relationship between the punitive damages award and the harm likely to result from the defendant's conduct as well as the harm that actually has occurred.' " TXO, 509 U. S., at 460 (emphasis in original), quoting Haslip, 499 U. S., at 21. Thus, in upholding the $10 million award in TXO, we relied on the difference between that figure and the harm to the victim that would have ensued if the tortious plan had succeeded. That difference suggested that the relevant ratio was not more than 10 to 1.[34] 582 The $2 million in punitive damages awarded to Dr. Gore by the Alabama Supreme Court is 500 times the amount of his actual harm as determined by the jury.[35] Moreover, there is no suggestion that Dr. Gore or any other BMW purchaser was threatened with any additional potential harm by BMW's nondisclosure policy. The disparity in this case is thus dramatically greater than those considered in Haslip and TXO. [36] Of course, we have consistently rejected the notion that the constitutional line is marked by a simple mathematical formula, even one that compares actual and potential damages to the punitive award. TXO, 509 U. S., at 458.[37] Indeed, low awards of compensatory damages may properly support a higher ratio than high compensatory awards, if, for example, a particularly egregious act has resulted in only a small amount of economic damages. A higher ratio may also be justified in cases in which the injury is hard to detect or the monetary value of noneconomic harm might have been difficult to determine. It is appropriate, therefore, to reiterate our rejection of a categorical approach. Once again, "we return to what we said . . . in Haslip: `We need not, and 583 indeed we cannot, draw a mathematical bright line between the constitutionally acceptable and the constitutionally unacceptable that would fit every case. We can say, however, that [a] general concer[n] of reasonableness . . . properly enter[s] into the constitutional calculus.' " Id., at 458 (quoting Haslip, 499 U. S., at 18). In most cases, the ratio will be within a constitutionally acceptable range, and remittitur will not be justified on this basis. When the ratio is a breathtaking 500 to 1, however, the award must surely "raise a suspicious judicial eyebrow." TXO, 509 U. S., at 481 (O'Connor, J., dissenting). Sanctions for Comparable Misconduct Comparing the punitive damages award and the civil or criminal penalties that could be imposed for comparable misconduct provides a third indicium of excessiveness. As Justice O'Connor has correctly observed, a reviewing court engaged in determining whether an award of punitive damages is excessive should "accord `substantial deference' to legislative judgments concerning appropriate sanctions for the conduct at issue." Browning-Ferris Industries of Vt., Inc. v. Kelco Disposal, Inc., 492 U. S., at 301 (opinion concurring in part and dissenting in part). In Haslip, 499 U. S., at 23, the Court noted that although the exemplary award was "much in excess of the fine that could be imposed," imprisonment was also authorized in the criminal context.[38] In this 584 case the $2 million economic sanction imposed on BMW is substantially greater than the statutory fines available in Alabama and elsewhere for similar malfeasance. The maximum civil penalty authorized by the Alabama Legislature for a violation of its Deceptive Trade Practices Act is $2,000; [39] other States authorize more severe sanctions, with the maxima ranging from $5,000 to $10,000.[40] Significantly, some statutes draw a distinction between first offenders and recidivists; thus, in New York the penalty is $50 for a first offense and $250 for subsequent offenses. None of these statutes would provide an out-of-state distributor with fair notice that the first violationor, indeed the first 14 violationsof its provisions might subject an offender to a multimillion dollar penalty. Moreover, at the time BMW's policy was first challenged, there does not appear to have been any judicial decision in Alabama or elsewhere indicating that application of that policy might give rise to such severe punishment. The sanction imposed in this case cannot be justified on the ground that it was necessary to deter future misconduct without considering whether less drastic remedies could be expected to achieve that goal. The fact that a multimillion dollar penalty prompted a change in policy sheds no light on the question whether a lesser deterrent would have adequately protected the interests of Alabama consumers. In 585 the absence of a history of noncompliance with known statutory requirements, there is no basis for assuming that a more modest sanction would not have been sufficient to motivate full compliance with the disclosure requirement imposed by the Alabama Supreme Court in this case. IV We assume, as the juries in this case and in the Yates case found, that the undisclosed damage to the new BMW's affected their actual value. Notwithstanding the evidence adduced by BMW in an effort to prove that the repainted cars conformed to the same quality standards as its other cars, we also assume that it knew, or should have known, that as time passed the repainted cars would lose their attractive appearance more rapidly than other BMW's. Moreover, we of course accept the Alabama courts' view that the state interest in protecting its citizens from deceptive trade practices justifies a sanction in addition to the recovery of compensatory damages. We cannot, however, accept the conclusion of the Alabama Supreme Court that BMW's conduct was sufficiently egregious to justify a punitive sanction that is tantamount to a severe criminal penalty. The fact that BMW is a large corporation rather than an impecunious individual does not diminish its entitlement to fair notice of the demands that the several States impose on the conduct of its business. Indeed, its status as an active participant in the national economy implicates the federal interest in preventing individual States from imposing undue burdens on interstate commerce. While each State has ample power to protect its own consumers, none may use the punitive damages deterrent as a means of imposing its regulatory policies on the entire Nation. As in Haslip, we are not prepared to draw a bright line marking the limits of a constitutionally acceptable punitive damages award. Unlike that case, however, we are fully convinced that the grossly excessive award imposed in this 586 case transcends the constitutional limit.[41] Whether the appropriate remedy requires a new trial or merely an independent determination by the Alabama Supreme Court of the award necessary to vindicate the economic interests of Alabama consumers is a matter that should be addressed by the state court in the first instance. The judgment is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered.	The Due Process Clause of the Fourteenth Amendment prohibits a State from imposing a "`grossly excessive'" punishment on a tortfeasor Production The wrongdoing involved in this case was the decision by a national distributor of automobiles not to advise its dealers, and hence their customers, of predelivery damage to new cars when the cost of repair amounted to less than 3 percent of the car's suggested retail price The question presented 563 is whether a $2 million punitive damages award to the purchaser of one of these cars exceeds the constitutional limit I In January 1990, Dr Ira Gore, Jr (respondent), purchased a black BMW sports sedan for $40,75088 from an authorized BMW dealer in Birmingham, Alabama After driving the car for approximately nine months, and without noticing any flaws in its appearance, Dr Gore took the car to "Slick Finish," an independent detailer, to make it look "`snazzier than it normally would appear'" Mr Slick, the proprietor, detected evidence that the car had been repainted[1] Convinced that he had been cheated, Dr Gore brought suit against petitioner BMW of North America (BMW), the American distributor of BMW automobiles[2] Dr Gore alleged, inter alia, that the failure to disclose that the car had been repainted constituted suppression of a material fact[3] The complaint prayed for $500,000 in compensatory and punitive damages, and costs At trial, BMW acknowledged that it had adopted a nationwide policy in 1983 concerning cars that were damaged in the course of manufacture or transportation If the cost of repairing the damage exceeded 3 percent of the car's suggested 564 retail price, the car was placed in company service for a period of time and then sold as used If the repair cost did not exceed 3 percent of the suggested retail price, however, the car was sold as new without advising the dealer that any repairs had been made Because the $60137 cost of repainting Dr Gore's car was only about 15 percent of its suggested retail price, BMW did not disclose the damage or repair to the Birmingham dealer Dr Gore asserted that his repainted car was worth less than a car that had not been refinished To prove his actual damages of $4,000, he relied on the testimony of a former BMW dealer, who estimated that the value of a repainted BMW was approximately 10 percent less than the value of a new car that had not been damaged and repaired[4] To support his claim for punitive damages, Dr Gore introduced evidence that since 1983 BMW had sold 983 refinished cars as new, including 14 in Alabama, without disclosing that the cars had been repainted before sale at a cost of more than $300 per vehicle[5] Using the actual damage estimate of $4,000 per vehicle, Dr Gore argued that a punitive award of $4 million would provide an appropriate penalty for selling approximately 1,000 cars for more than they were worth In defense of its disclosure policy, BMW argued that it was under no obligation to disclose repairs of minor damage to new cars and that Dr Gore's car was as good as a car with the original factory finish It disputed Dr Gore's assertion that the value of the car was impaired by the repainting and argued that this good-faith belief made a punitive award inappropriate BMW also maintained that transactions in jurisdictions other than Alabama had no relevance to Dr Gore's claim 565 The jury returned a verdict finding BMW liable for compensatory damages of $4,000 In addition, the jury assessed $4 million in punitive damages, based on a determination that the nondisclosure policy constituted "gross, oppressive or malicious" fraud[6] See 6-11-21 BMW filed a post-trial motion to set aside the punitive damages award The company introduced evidence to establish that its nondisclosure policy was consistent with the laws of roughly 25 States defining the disclosure obligations of automobile manufacturers, distributors, and dealers The most stringent of these statutes required disclosure of repairs costing more than 3 percent of the suggested retail price; none mandated disclosure of less costly repairs[7] Relying on these statutes, BMW contended that its conduct was lawful in these States and therefore could not provide the basis for an award of punitive damages BMW also drew the court's attention to the fact that its nondisclosure policy had never been adjudged unlawful before this action was filed Just months before Dr Gore's case went to trial, the jury in a similar lawsuit filed by another Alabama BMW purchaser found that BMW's failure to disclose paint repair constituted fraud [8] Before the 566 judgment in this case, BMW changed its policy by taking steps to avoid the sale of any refinished vehicles in Alabama and two other States When the $4 million verdict was returned in this case, BMW promptly instituted a nationwide policy of full disclosure of all repairs, no matter how minor In response to BMW's arguments, Dr Gore asserted that the policy change demonstrated the efficacy of the punitive damages award He noted that while no jury had held the policy unlawful, BMW had received a number of customer complaints relating to undisclosed repairs and had settled some lawsuits[9] Finally, he maintained that the disclosure statutes of other States were irrelevant because BMW had failed to offer any evidence that the disclosure statutes supplanted, rather than supplemented, existing causes of action for common-law fraud The trial judge denied BMW's post-trial motion, holding, inter alia, that the award was not excessive On appeal, the Alabama Supreme Court also rejected BMW's claim that the award exceeded the constitutionally permissible amount The court's excessiveness inquiry applied the factors articulated in Green Oil and approved in Pacific Mut Life Ins -625 Based on its analysis, the court concluded that BMW's conduct was "reprehensible"; the nondisclosure was profitable for the company; the judgment "would not have a substantial impact upon [BMW's] financial position"; the litigation had been expensive; no criminal sanctions had been imposed on BMW for the same conduct; the award of no punitive 567 damages in Yates reflected "the inherent uncertainty of the trial process"; and the punitive award bore a "reasonable relationship" to "the harm that was likely to occur from [BMW's] conduct as well as the harm that actually occurred" 646 So 2d, at 625-627 The Alabama Supreme Court did, however, rule in BMW's favor on one critical point: The court found that the jury improperly computed the amount of punitive damages by multiplying Dr Gore's compensatory damages by the number of similar sales in other jurisdictions Id, Having found the verdict tainted, the court held that "a constitutionally reasonable punitive damages award in this case is $2,000,000," id, and therefore ordered a remittitur in that amount[10] The court's discussion of the amount of its remitted award expressly disclaimed any reliance on "acts that occurred in other jurisdictions"; instead, the court explained that it had used a "comparative analysis" that considered Alabama cases, "along with cases from other jurisdictions, involving the sale of an automobile where the seller misrepresented the condition of the vehicle and the jury awarded punitive damages to the purchaser" [11]Id, 568 Because we believed that a review of this case would help to illuminate "the character of the standard that will identify unconstitutionally excessive awards" of punitive damages, see Honda Motor Co v Oberg, 512 US 415, we granted certiorari, 513 US 1125 II Punitive damages may properly be imposed to further a State's legitimate interests in punishing unlawful conduct and deterring its repetition Gertz v Robert Welch, Inc, 418 US 323, ; Newport v Fact Concerts, Inc, 453 US 247, ; 499 U S, at 22 In our federal system, States necessarily have considerable flexibility in determining the level of punitive damages that they will allow in different classes of cases and in any particular case Most States that authorize exemplary damages afford the jury similar latitude, requiring only that the damages awarded be reasonably necessary to vindicate the State's legitimate interests in punishment and deterrence See 509 U S, at 456; 499 U S, at 21, 22 Only when an award can fairly be categorized as "grossly excessive" in relation to these interests does it enter the zone of arbitrariness that violates the Due Process Clause of the Fourteenth Amendment Cf 509 U S, at 456 For that reason, the federal excessiveness inquiry appropriately begins with an identification of the state interests that a punitive award is designed to serve We therefore focus our attention first on the scope of Alabama's legitimate interests in punishing BMW and deterring it from future misconduct No one doubts that a State may protect its citizens by prohibiting deceptive trade practices and by requiring automobile 569 distributors to disclose presale repairs that affect the value of a new car But the States need not, and in fact do not, provide such protection in a uniform manner Some States rely on the judicial process to formulate and enforce an appropriate disclosure requirement by applying principles of contract and tort law[12] Other States have enacted various forms of legislation that define the disclosure obligations of automobile manufacturers, distributors, and dealers[13]570 The result is a patchwork of rules representing the diverse policy judgments of lawmakers in 50 States That diversity demonstrates that reasonable people may disagree about the value of a full disclosure requirement Some legislatures may conclude that affirmative disclosure requirements are unnecessary because the self-interest of those involved in the automobile trade in developing and maintaining the goodwill of their customers will motivate them to make voluntary disclosures or to refrain from selling cars that do not comply with self-imposed standards Those legislatures that do adopt affirmative disclosure obligations may take into account the cost of government regulation, choosing to draw a line exempting minor repairs from such a requirement In formulating a disclosure standard, States may also consider other goals, such as providing a "safe harbor" for automobile manufacturers, distributors, and dealers against lawsuits over minor repairs[14] We may assume, arguendo, that it would be wise for every State to adopt Dr Gore's preferred rule, requiring full disclosure of every presale repair to a car, no matter how trivial and regardless of its actual impact on the value of the car 571 But while we do not doubt that Congress has ample authority to enact such a policy for the entire Nation,[15] it is clear that no single State could do so, or even impose its own policy choice on neighboring States See Bonaparte v Tax Court, 104 US 592, ("No State can legislate except with reference to its own jurisdiction Each State is independent of all the others in this particular")[16] Similarly, one State's power to impose burdens on the interstate market for automobiles is not only subordinate to the federal power over interstate commerce, Gibbons v Ogden, 9 Wheat 1, but is also constrained by the need to respect the interests of other States, see, e g, Healy v Beer Institute, 491 US 324, ; Edgar v MITE Corp, 457 US 624, We think it follows from these principles of state sovereignty and comity that a State may not impose economic sanctions on violators of its laws with the intent of changing the tortfeasors' lawful conduct in other States[17] Before this Court Dr Gore argued that the large punitive damages award was necessary to induce BMW to change the nationwide policy that it adopted in 1983[18] But by attempting to alter BMW's nationwide policy, Alabama would be infringing on the policy choices of other States To avoid such encroachment, the economic penalties that a State such as Alabama inflicts on those who transgress its laws, whether the penalties take the form of legislatively authorized fines or judicially imposed punitive damages, must be supported by the State's interest in protecting its own consumers and its own economy Alabama may insist that BMW adhere to a particular disclosure policy in that State Alabama does not 573 have the power, however, to punish BMW for conduct that was lawful where it occurred and that had no impact on Alabama or its residents[19] Nor may Alabama impose sanctions on BMW in order to deter conduct that is lawful in other jurisdictions In this case, we accept the Alabama Supreme Court's interpretation of the jury verdict as reflecting a computation of the amount of punitive damages "based in large part on conduct that happened in other jurisdictions" 646 So 2d, As the Alabama Supreme Court noted, neither the jury nor the trial court was presented with evidence that any of BMW's out-of-state conduct was unlawful "The only testimony touching the issue showed that approximately 60% of the vehicles that were refinished were sold in states where failure to disclose the repair was not an unfair trade practice" Id, n 6[20] The Alabama Supreme Court therefore properly eschewed reliance on BMW's out-of-state conduct, id, and based its remitted award solely on 574 conduct that occurred within Alabama[21] The award must be analyzed in the light of the same conduct, with consideration given only to the interests of Alabama consumers, rather than those of the entire Nation When the scope of the interest in punishment and deterrence that an Alabama court may appropriately consider is properly limited, it is apparentfor reasons that we shall now addressthat this award is grossly excessive III Elementary notions of fairness enshrined in our constitutional jurisprudence dictate that a person receive fair notice not only of the conduct that will subject him to punishment, but also of the severity of the penalty that a State may impose[22] Three guideposts, each of which indicates that BMW did not receive adequate notice of the magnitude of the sanction that Alabama might impose for adhering to the nondisclosure policy adopted in 1983, lead us to the conclusion that 575 the $2 million award against BMW is grossly excessive: the degree of reprehensibility of the nondisclosure; the disparity between the harm or potential harm suffered by Dr Gore and his punitive damages award; and the difference between this remedy and the civil penalties authorized or imposed in comparable cases We discuss these considerations in turn Degree of Reprehensibility Perhaps the most important indicium of the reasonableness of a punitive damages award is the degree of reprehensibility of the defendant's conduct[23] As the Court stated nearly 150 years ago, exemplary damages imposed on a defendant should reflect "the enormity of his offense" Day v Woodworth, 13 How 363, See also St Louis, I M & S R Co v Williams, 251 US 63, ; Browning-Ferris Industries of Vt, Inc v Kelco Disposal, Inc, 492 US 257, (O'Connor, J, concurring in part and dissenting in part) (reviewing court "should examine the gravity of the defendant's conduct and the harshness of the award of punitive damages")[24] This principle reflects the accepted view that some wrongs are more blameworthy than others Thus, we have said that 576 "nonviolent crimes are less serious than crimes marked by violence or the threat of violence" Solem v Helm, 463 US 277, Similarly, "trickery and deceit," 509 U S, at 462, are more reprehensible than negligence In both the West Virginia Supreme Court and the Justices of this Court placed special emphasis on the principle that punitive damages may not be "grossly out of proportion to the severity of the offense" [25]Id, 462 Indeed, for Justice Kennedy, the defendant's intentional malice was the decisive element in a "close and difficult" case Id, [26] In this case, none of the aggravating factors associated with particularly reprehensible conduct is present The harm BMW inflicted on Dr Gore was purely economic in nature The presale refinishing of the car had no effect on its performance or safety features, or even its appearance for at least nine months after his purchase BMW's conduct evinced no indifference to or reckless disregard for the health and safety of others To be sure, infliction of economic injury, especially when done intentionally through affirmative acts of misconduct, id, or when the target is financially vulnerable, can warrant a substantial penalty But this observation does not convert all acts that cause economic harm into torts that are sufficiently reprehensible to justify a significant sanction in addition to compensatory damages Dr Gore contends that BMW's conduct was particularly reprehensible because nondisclosure of the repairs to his car formed part of a nationwide pattern of tortious conduct Certainly, evidence that a defendant has repeatedly engaged in prohibited conduct while knowing or suspecting that it was unlawful would provide relevant support for an argument 577 that strong medicine is required to cure the defendant's disrespect for the law See id, at 462, n 28 Our holdings that a recidivist may be punished more severely than a first offender recognize that repeated misconduct is more reprehensible than an individual instance of malfeasance See Gryger v Burke, 334 US 728, In support of his thesis, Dr Gore advances two arguments First, he asserts that the state disclosure statutes supplement, rather than supplant, existing remedies for breach of contract and common-law fraud Thus, according to Dr Gore, the statutes may not properly be viewed as immunizing from liability the nondisclosure of repairs costing less than the applicable statutory threshold Brief for Respondent 18-19 Second, Dr Gore maintains that BMW should have anticipated that its failure to disclose similar repair work could expose it to liability for fraud Id, We recognize, of course, that only state courts may authoritatively construe state statutes As far as we are aware, at the time this action was commenced no state court had explicitly addressed whether its State's disclosure statute provides a safe harbor for nondisclosure of presumptively minor repairs or should be construed instead as supplementing common-law duties[27] A review of the text of the statutes, 578 however, persuades us that in the absence of a statecourt determination to the contrary, a corporate executive could reasonably interpret the disclosure requirements as establishing safe harbors In California, for example, the disclosure statute defines "material" damage to a motor vehicle as damage requiring repairs costing in excess of 3 percent of the suggested retail price or $500, whichever is greater Cal Veh Code Ann 9990 (West Supp 1996) The Illinois statute states that in cases in which disclosure is not required, "nondisclosure does not constitute a misrepresentation or omission of fact" Ill Comp Stat, ch 815, 710/5 [28] Perhaps the statutes may also be interpreted in another way We simply emphasize that the record contains no evidence that BMW's decision to follow a disclosure policy that coincided with the strictest extant state statute was sufficiently reprehensible to justify a $2 million award of punitive damages 579 Dr Gore's second argument for treating BMW as a recidivist is that the company should have anticipated that its actions would be considered fraudulent in some, if not all, jurisdictions This contention overlooks the fact that actionable fraud requires a material misrepresentation or omission[29] This qualifier invites line-drawing of just the sort engaged in by States with disclosure statutes and by BMW We do not think it can be disputed that there may exist minor imperfections in the finish of a new car that can be repaired (or indeed, left unrepaired) without materially affecting the car's value[30] There is no evidence that BMW acted in bad faith when it sought to establish the appropriate line between presumptively minor damage and damage requiring disclosure to purchasers For this purpose, BMW could reasonably rely on state disclosure statutes for guidance In this regard, it is also significant that there is no evidence that BMW persisted in a course of conduct after it had been adjudged unlawful on even one occasion, let alone repeated occasions[31] Finally, the record in this case discloses no deliberate false statements, acts of affirmative misconduct, or concealment of evidence of improper motive, such as were present in and 499 U S, at 5; 509 U S, We accept, of course, the jury's finding that BMW suppressed 580 a material fact which Alabama law obligated it to communicate to prospective purchasers of repainted cars in that State But the omission of a material fact may be less reprehensible than a deliberate false statement, particularly when there is a good-faith basis for believing that no duty to disclose exists That conduct is sufficiently reprehensible to give rise to tort liability, and even a modest award of exemplary damages does not establish the high degree of culpability that warrants a substantial punitive damages award Because this case exhibits none of the circumstances ordinarily associated with egregiously improper conduct, we are persuaded that BMW's conduct was not sufficiently reprehensible to warrant imposition of a $2 million exemplary damages award Ratio The second and perhaps most commonly cited indicium of an unreasonable or excessive punitive damages award is its ratio to the actual harm inflicted on the plaintiff See 509 U S, at 459; 499 U S, at 23 The principle that exemplary damages must bear a "reasonable relationship" to compensatory damages has a long pedigree[32] Scholars have identified a number of early English statutes authorizing the 581 award of multiple damages for particular wrongs Some 65 different enactments during the period between 1275 and 1753 provided for double, treble, or quadruple damages[33] Our decisions in both and endorsed the proposition that a comparison between the compensatory award and the punitive award is significant In we concluded that even though a punitive damages award of "more than 4 times the amount of compensatory damages" might be "close to the line," it did not "cross the line into the area of constitutional impropriety" 499 US, at 23-24 following dicta in refined this analysis by confirming that the proper inquiry is "`whether there is a reasonable relationship between the punitive damages award and the harm likely to result from the defendant's conduct as well as the harm that actually has occurred' " 509 U S, at 460 quoting 499 U S, at 21 Thus, in upholding the $10 million award in we relied on the difference between that figure and the harm to the victim that would have ensued if the tortious plan had succeeded That difference suggested that the relevant ratio was not more than 10 to 1[34] 582 The $2 million in punitive damages awarded to Dr Gore by the Alabama Supreme Court is 500 times the amount of his actual harm as determined by the jury[35] Moreover, there is no suggestion that Dr Gore or any other BMW purchaser was threatened with any additional potential harm by BMW's nondisclosure policy The disparity in this case is thus dramatically greater than those considered in and [36] Of course, we have consistently rejected the notion that the constitutional line is marked by a simple mathematical formula, even one that compares actual and potential damages to the punitive award 509 U S, [37] Indeed, low awards of compensatory damages may properly support a higher ratio than high compensatory awards, if, for example, a particularly egregious act has resulted in only a small amount of economic damages A higher ratio may also be justified in cases in which the injury is hard to detect or the monetary value of noneconomic harm might have been difficult to determine It is appropriate, therefore, to reiterate our rejection of a categorical approach Once again, "we return to what we said in : `We need not, and 583 indeed we cannot, draw a mathematical bright line between the constitutionally acceptable and the constitutionally unacceptable that would fit every case We can say, however, that [a] general concer[n] of reasonableness properly enter[s] into the constitutional calculus' " Id, (quoting 499 U S, at 18) In most cases, the ratio will be within a constitutionally acceptable range, and remittitur will not be justified on this basis When the ratio is a breathtaking 500 to 1, however, the award must surely "raise a suspicious judicial eyebrow" 509 U S, at 481 (O'Connor, J, dissenting) Sanctions for Comparable Misconduct Comparing the punitive damages award and the civil or criminal penalties that could be imposed for comparable misconduct provides a third indicium of excessiveness As Justice O'Connor has correctly observed, a reviewing court engaged in determining whether an award of punitive damages is excessive should "accord `substantial deference' to legislative judgments concerning appropriate sanctions for the conduct at issue" Browning-Ferris Industries of Vt, Inc v Kelco Disposal, Inc, 492 U S, at In 499 U S, at 23, the Court noted that although the exemplary award was "much in excess of the fine that could be imposed," imprisonment was also authorized in the criminal context[38] In this 584 case the $2 million economic sanction imposed on BMW is substantially greater than the statutory fines available in Alabama and elsewhere for similar malfeasance The maximum civil penalty authorized by the Alabama Legislature for a violation of its Deceptive Trade Practices Act is $2,000; [39] other States authorize more severe sanctions, with the maxima ranging from $5,000 to $10,000[40] Significantly, some statutes draw a distinction between first offenders and recidivists; thus, in New York the penalty is $50 for a first offense and $250 for subsequent offenses None of these statutes would provide an out-of-state distributor with fair notice that the first violationor, indeed the first 14 violationsof its provisions might subject an offender to a multimillion dollar penalty Moreover, at the time BMW's policy was first challenged, there does not appear to have been any judicial decision in Alabama or elsewhere indicating that application of that policy might give rise to such severe punishment The sanction imposed in this case cannot be justified on the ground that it was necessary to deter future misconduct without considering whether less drastic remedies could be expected to achieve that goal The fact that a multimillion dollar penalty prompted a change in policy sheds no light on the question whether a lesser deterrent would have adequately protected the interests of Alabama consumers In 585 the absence of a history of noncompliance with known statutory requirements, there is no basis for assuming that a more modest sanction would not have been sufficient to motivate full compliance with the disclosure requirement imposed by the Alabama Supreme Court in this case IV We assume, as the juries in this case and in the Yates case found, that the undisclosed damage to the new BMW's affected their actual value Notwithstanding the evidence adduced by BMW in an effort to prove that the repainted cars conformed to the same quality standards as its other cars, we also assume that it knew, or should have known, that as time passed the repainted cars would lose their attractive appearance more rapidly than other BMW's Moreover, we of course accept the Alabama courts' view that the state interest in protecting its citizens from deceptive trade practices justifies a sanction in addition to the recovery of compensatory damages We cannot, however, accept the conclusion of the Alabama Supreme Court that BMW's conduct was sufficiently egregious to justify a punitive sanction that is tantamount to a severe criminal penalty The fact that BMW is a large corporation rather than an impecunious individual does not diminish its entitlement to fair notice of the demands that the several States impose on the conduct of its business Indeed, its status as an active participant in the national economy implicates the federal interest in preventing individual States from imposing undue burdens on interstate commerce While each State has ample power to protect its own consumers, none may use the punitive damages deterrent as a means of imposing its regulatory policies on the entire Nation As in we are not prepared to draw a bright line marking the limits of a constitutionally acceptable punitive damages award Unlike that case, however, we are fully convinced that the grossly excessive award imposed in this *586 case transcends the constitutional limit[41] Whether the appropriate remedy requires a new trial or merely an independent determination by the Alabama Supreme Court of the award necessary to vindicate the economic interests of Alabama consumers is a matter that should be addressed by the state court in the first instance The judgment is reversed, and the case is remanded for further proceedings not inconsistent with this opinion It is so ordered	1,981
Justice Breyer	concurring	false	BMW of North America, Inc. v. Gore	1996-05-28	null	https://www.courtlistener.com/opinion/118026/bmw-of-north-america-inc-v-gore/	https://www.courtlistener.com/api/rest/v3/clusters/118026/	1,996	1995-052	1	5	4	The Alabama state courts have assessed the defendant $2 million in "punitive damages" for having knowingly failed to tell a BMW automobile buyer that, at a cost of $600, it had repainted portions of his new $40,000 car, thereby lowering its potential resale value by about 10%. The Court's opinion, which I join, explains why we have concluded that this award, in this case, was "grossly excessive" in relation to legitimate punitive damages objectives, and hence an arbitrary deprivation of life, liberty, or property in violation of the Due Process Clause. See TXO Production Corp. v. Alliance Resources Corp., 509 U.S. 443, 453, 454 (1993) (A "grossly excessive" punitive award amounts to an "arbitrary deprivation of property without due process of law") (plurality opinion). Members of this Court have generally thought, however, that if "fair procedures were followed, a judgment that is a product of that process is entitled to a strong presumption 587 of validity." Id., at 457. See also Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 40-42 (1991) (Kennedy, J., concurring in judgment). And the Court also has found that punitive damages procedures very similar to those followed here were not, by themselves, fundamentally unfair. Id., at 15-24. Thus, I believe it important to explain why this presumption of validity is overcome in this instance. The reason flows from the Court's emphasis in Haslip upon the constitutional importance of legal standards that provide "reasonable constraints" within which "discretion is exercised," that assure "meaningful and adequate review by the trial court whenever a jury has fixed the punitive damages," and permit "appellate review [that] makes certain that the punitive damages are reasonable in their amount and rational in light of their purpose to punish what has occurred and to deter its repetition." Id., at 20-21. See also id., at 18 ("[U]nlimited jury discretionor unlimited judicial discretion for that matterin the fixing of punitive damages may invite extreme results that jar one's constitutional sensibilities"). This constitutional concern, itself harkening back to the Magna Carta, arises out of the basic unfairness of depriving citizens of life, liberty, or property, through the application, not of law and legal processes, but of arbitrary coercion. Daniels v. Williams, 474 U.S. 327, 331 (1986); Dent v. West Virginia, 129 U.S. 114, 123 (1889). Requiring the application of law, rather than a decisionmaker's caprice, does more than simply provide citizens notice of what actions may subject them to punishment; it also helps to assure the uniform general treatment of similarly situated persons that is the essence of law itself. See Railway Express Agency, Inc. v. New York, 336 U.S. 106, 112 (1949) (Jackson, J., concurring) ("[T]here is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally"). 588 Legal standards need not be precise in order to satisfy this constitutional concern. See Haslip, supra, at 20 (comparing punitive damages standards to such legal standards as "reasonable care," "due diligence," and "best interests of the child") (internal quotation marks omitted). But they must offer some kind of constraint upon a jury or court's discretion, and thus protection against purely arbitrary behavior. The standards the Alabama courts applied here are vague and open ended to the point where they risk arbitrary results. In my view, although the vagueness of those standards does not, by itself, violate due process, see Haslip, supra, it does invite the kind of scrutiny the Court has given the particular verdict before us. See id., at 18 ("[C]oncerns of . . . adequate guidance from the court when the case is tried to a jury properly enter into the constitutional calculus"); TXO, supra, at 475 ("[I]t cannot be denied that the lack of clear guidance heightens the risk that arbitrariness, passion, or bias will replace dispassionate deliberation as the basis for the jury's verdict") (O'Connor, J., dissenting). This is because the standards, as the Alabama Supreme Court authoritatively interpreted them here, provided no significant constraints or protection against arbitrary results. First, the Alabama statute that permits punitive damages does not itself contain a standard that readily distinguishes between conduct warranting very small, and conduct warranting very large, punitive damages awards. That statute permits punitive damages in cases of "oppression, fraud, wantonness, or malice." Ala. Code § 6-11-20(a) (1993). But the statute goes on to define those terms broadly, to encompass far more than the egregious conduct that those terms, at first reading, might seem to imply. An intentional misrepresentation, made through a statement or silence, can easily amount to "fraud" sufficient to warrant punitive damages. See § 6-11-20(b)(1) ("Fraud" includes "intentional . . . concealment of a material fact the concealing party had a 589 duty to disclose, which was gross, oppressive, or malicious and committed with the intention . . . of thereby depriving a person or entity of property") (emphasis added); § 6-11 20(b)(2) ("Malice" includes any "wrongful act without just cause or excuse . . . [w]ith an intent to injure the . . . property of another") (emphasis added); § 6-11-20(b)(5) ("Oppression" includes "[s]ubjecting a person to . . . unjust hardship in conscious disregard of that person's rights"). The statute thereby authorizes punitive damages for the most serious kinds of misrepresentations, say, tricking the elderly out of their life savings, for much less serious conduct, such as the failure to disclose repainting a car, at issue here, and for a vast range of conduct in between. Second, the Alabama courts, in this case, have applied the "factors" intended to constrain punitive damages awards in a way that belies that purpose. Green Oil Co. v. Hornsby, 539 So. 2d 218 (Ala. 1989), sets forth seven factors that appellate courts use to determine whether or not a jury award was "grossly excessive" and which, in principle, might make up for the lack of significant constraint in the statute. But, as the Alabama courts have authoritatively interpreted them, and as their application in this case illustrates, they impose little actual constraint. (a) Green Oil requires that a punitive damages award "bear a reasonable relationship to the harm that is likely to occur from the defendant's conduct as well as to the harm that actually has occurred." Id., at 223. But this standard does little to guide a determination of what counts as a "reasonable" relationship, as this case illustrates. The record evidence of past, present, or likely future harm consists of (a) $4,000 of harm to Dr. Gore's BMW; (b) 13 other similar Alabama instances; and (c) references to about 1,000 similar instances in other States. The Alabama Supreme Court, disregarding BMW's failure to make relevant objection to the out-of-state instances at trial (as was the court's right), held that the last mentioned, out-of-state instances did not 590 count as relevant harm. It went on to find "a reasonable relationship" between the harm and the $2 million punitive damages award without "consider[ing] those acts that occurred in other jurisdictions. " 646 So. 2d 619, 628 (1994) (emphasis added). For reasons explored by the majority in greater depth, see ante, at 574-586, the relationship between this award and the underlying conduct seems well beyond the bounds of the "reasonable." To find a "reasonable relationship" between purely economic harm totaling $56,000, without significant evidence of future repetition, and a punitive award of $2 million is to empty the "reasonable relationship" test of meaningful content. As thus construed, it does not set forth a legal standard that could have significantly constrained the discretion of Alabama factfinders. (b) Green Oil `s second factor is the "degree of reprehensibility" of the defendant's conduct. Green Oil, supra, at 223. Like the "reasonable relationship" test, this factor provides little guidance on how to relate culpability to the size of an award. The Alabama court, in considering this factor, found "reprehensible" that BMW followed a conscious policy of not disclosing repairs to new cars when the cost of repairs amounted to less than 3% of the car's value. Of course, any conscious policy of not disclosing a repairwhere one knows the nondisclosure might cost the customer resale valueis "reprehensible" to some degree. But, for the reasons discussed by the majority, ante, at 575-580, I do not see how the Alabama courts could find conduct that (they assumed) caused $56,000 of relevant economic harm especially or unusually reprehensible enough to warrant $2 million in punitive damages, or a significant portion of that award. To find to the contrary, as the Alabama courts did, is not simply unreasonable; it is to make "reprehensibility" a concept without constraining force, i. e., to deprive the concept of its constraining power to protect against serious and capricious deprivations. 591 (c) Green Oil `s third factor requires "punitive damages" to "remove the profit" of the illegal activity and "be in excess of the profit, so that the defendant recognizes a loss." Green Oil, 539 So. 2d, at 223. This factor has the ability to limit awards to a fixed, rational amount. But as applied, that concept's potential was not realized, for the court did not limit the award to anywhere near the $56,000 in profits evidenced in the record. Given the record's description of the conduct and its prevalence, this factor could not justify much of the $2 million award. (d) Green Oil `s fourth factor is the "financial position" of the defendant. Ibid. Since a fixed dollar award will punish a poor person more than a wealthy one, one can understand the relevance of this factor to the State's interest in retribution (though not necessarily to its interest in deterrence, given the more distant relation between a defendant's wealth and its responses to economic incentives). See TXO, 509 U. S., at 462, and n. 28 (plurality opinion); id., at 469 (Kennedy, J., concurring in part and concurring in judgment); Haslip, 499 U. S., at 21-22; Browning-Ferris Industries of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 300 (1989) (O'Connor, J., concurring in part and dissenting in part). This factor, however, is not necessarily intended to act as a significant constraint on punitive awards. Rather, it provides an open-ended basis for inflating awards when the defendant is wealthy, as this case may illustrate. That does not make its use unlawful or inappropriate; it simply means that this factor cannot make up for the failure of other factors, such as "reprehensibility," to constrain significantly an award that purports to punish a defendant's conduct. (e) Green Oil `s fifth factor is the "costs of litigation" and the State's desire "to encourage plaintiffs to bring wrongdoers to trial." 539 So. 2d, at 223. This standard provides meaningful constraint to the extent that the enhancement it authorized is linked to a fixed, ascertainable amount approximating actual costs, even when defined generously to reflect 592 the contingent nature of plaintiffs' victories. But as this case shows, the factor cannot operate as a constraint when an award much in excess of costs is approved for other reasons. An additional aspect of the standardthe need to "encourage plaintiffs to bring wrongdoers to trial"is a factor that does not constrain, but enhances, discretionary powerespecially when unsupported by evidence of a special need to encourage litigation (which the Alabama courts here did not mention). (f) Green Oil `s sixth factor is whether or not "criminal sanctions have been imposed on the defendant for his conduct." Ibid. This factor did not apply here. (g) Green Oil `s seventh factor requires that "other civil actions" filed "against the same defendant, based on the same conduct," be considered in mitigation. Id., at 224. That factor did not apply here. Thus, the first, second, and third Green Oil factors, in principle, might sometimes act as constraints on arbitrary behavior. But as the Alabama courts interpreted those standards in this case, even taking those three factors together, they could not have significantly constrained the court system's ability to impose "grossly excessive" awards. Third, the state courts neither referred to, nor made any effort to find, nor enunciated any other standard that either directly, or indirectly as background, might have supplied the constraining legal force that the statute and Green Oil standards (as interpreted here) lack. Dr. Gore did argue to the jury an economic theory based on the need to offset the totality of the harm that the defendant's conduct caused. Some theory of that general kind might have provided a significant constraint on arbitrary awards (at least where confined to the relevant harm-causing conduct, see ante, at 570-574). Some economists, for example, have argued for a standard that would deter illegal activity causing solely economic harm through the use of punitive damages awards that, as a whole, would take from a wrongdoer the total cost of the 593 harm caused. See, e. g., S. Shavell, Economic Analysis of Accident Law 162 (1987) ("If liability equals losses caused multiplied by . .. the inverse of the probability of suit, injurers will act optimally under liability rules despite the chance that they will escape suit"); Cooter, Punitive Damages for Deterrence: When and How Much, 40 Ala. L. Rev. 1143, 1146-1148 (1989). My understanding of the intuitive essence of some of those theories, which I put in crude form (leaving out various qualifications), is that they could permit juries to calculate punitive damages by making a rough estimate of global harm, dividing that estimate by a similarly rough estimate of the number of successful lawsuits that would likely be brought, and adding generous attorney's fees and other costs. Smaller damages would not sufficiently discourage firms from engaging in the harmful conduct, while larger damages would "over-deter" by leading potential defendants to spend more to prevent the activity that causes the economic harm, say, through employee training, than the cost of the harm itself. See Galligan, Augmented Awards: The Efficient Evolution of Punitive Damages, 51 La. L. Rev. 3, 17-20, 28-30 (1990). Larger damages might also "double count" by including in the punitive damages award some of the compensatory, or punitive, damages that subsequent plaintiffs would also recover. The record before us, however, contains nothing suggesting that the Alabama Supreme Court, when determining the allowable award, applied any "economic" theory that might explain the $2 million recovery. Cf. Browning-Ferris, supra, at 300 (noting that the Constitution "does not incorporate the views of the Law and Economics School," nor does it "`require the States to subscribe to any particular economic theory' ") (O'Connor, J., concurring in part and dissenting in part) (quoting CTS Corp. v. Dynamics Corp. of America, 481 U.S. 69, 92 (1987)). And courts properly tend to judge the rationality of judicial actions in terms of the reasons that were given, and the facts that were before the court, cf. TXO, 594 509 U. S., at 468 (Kennedy, J., concurring in part and concurring in judgment), not those that might have been given on the basis of some conceivable set of facts (unlike the rationality of economic statutes enacted by legislatures subject to the public's control through the ballot box, see, e. g., FCC v. Beach Communications, Inc., 508 U.S. 307, 315 (1993)). Therefore, reference to a constraining "economic" theory, which might have counseled more deferential review by this Court, is lacking in this case. Fourth, I cannot find any community understanding or historic practice that this award might exemplify and which, therefore, would provide background standards constraining arbitrary behavior and excessive awards. A punitive damages award of $2 million for intentional misrepresentation causing $56,000 of harm is extraordinary by historical standards, and, as far as I am aware, finds no analogue until relatively recent times. Amici for Dr. Gore attempt to show that this is not true, pointing to various historical cases which, according to their calculations, represented roughly equivalent punitive awards for similarly culpable conduct. See Brief for James D. A. Boyle et al. as Amici Curiae 4-5 (hereinafter Legal Historians' Brief). Among others, they cite Wilkes v. Wood, Lofft 1, 98 Eng. Rep. 489 (C. P. 1763) (£1,000 said to be equivalent of $1.5 million, for warrantless search of papers); Huckle v. Money, 2 Wills. 205, 95 Eng. Rep. 768 (K. B. 1763) (£300, said to be $450,000, for 6-hour false imprisonment); Hewlett v. Cruchley, 5 Taunt. 277, 128 Eng. Rep. 696 (C. P. 1813) (£2,000, said to be $680,000, for malicious prosecution); Merest v. Harvey, 5 Taunt. 442, 128 Eng. Rep. 761 (C. P. 1814) (£500, said to be $165,000, for poaching). But amici apparently base their conversions on a mathematical assumption, namely, that inflation has progressed at a constant 3% rate of inflation. See Legal Historians' Brief 4. In fact, consistent, cumulative inflation is a modern phenomenon. See McCusker, How Much Is That in Real Money? A Historical Price Index for Use as a Deflator 595 of Money Values in the Economy of the United States, 101 Proceedings of American Antiquarian Society 297, 310, 323 332 (1992). Estimates based on historical rates of valuation, while highly approximate, suggest that the ancient extraordinary awards are small compared to the $2 million here at issue, or other modern punitive damages figures. See Appendix to this opinion, infra, at 597-598 (suggesting that the modern equivalent of the awards in the above cases is something like $150,000, $45,000, $100,000, and $25,000, respectively). And, as the majority opinion makes clear, the record contains nothing to suggest that the extraordinary size of the award in this case is explained by the extraordinary wrongfulness of the defendant's behavior, measured by historical or community standards, rather than arbitrariness or caprice. Fifth, there are no other legislative enactments here that classify awards and impose quantitative limits that would significantly cabin the fairly unbounded discretion created by the absence of constraining legal standards. Cf., e. g., Tex. Civ. Prac. & Rem. Code Ann. § 41.008 (Supp. 1996) (punitive damages generally limited to greater of double damages, or $200,000, except cap does not apply to suits arising from certain serious criminal acts enumerated in the statute); Conn. Gen. Stat. § 52-240b (1995) (punitive damages may not exceed double compensatory damages in product liability cases); Fla. Stat. § 768.73(1) (Supp. 1993) (punitive damages in certain actions limited to treble compensatory damages); Ga. Code Ann. § 51-12-5.1(g) (Supp. 1995) ($250,000 cap in certain actions). The upshot is that the rules that purport to channel discretion in this kind of case, here did not do so in fact. That means that the award in this case was both (a) the product of a system of standards that did not significantly constrain a court's, and hence a jury's, discretion in making that award; and (b) grossly excessive in light of the State's legitimate punitive damages objectives. 596 The first of these reasons has special importance where courts review a jury-determined punitive damages award. That is because one cannot expect to direct jurors like legislators through the ballot box; nor can one expect those jurors to interpret law like judges, who work within a discipline and hierarchical organization that normally promotes roughly uniform interpretation and application of the law. Yet here Alabama expects jurors to act, at least a little, like legislators or judges, for it permits them, to a certain extent, to create public policy and to apply that policy, not to compensate a victim, but to achieve a policy-related objective outside the confines of the particular case. To the extent that neither clear legal principles nor fairly obvious historical or community-based standards (defining, say, especially egregious behavior) significantly constrain punitive damages awards, is there not a substantial risk of outcomes so arbitrary that they become difficult to square with the Constitution's assurance, to every citizen, of the law's protection? The standards here, as authoritatively interpreted, in my view, make this threat real and not theoretical. And, in these unusual circumstances, where legal standards offer virtually no constraint, I believe that this lack of constraining standards warrants this Court's detailed examination of the award. The second reasonthe severe disproportionality between the award and the legitimate punitive damages objectives reflects a judgment about a matter of degree. I recognize that it is often difficult to determine just when a punitive award exceeds an amount reasonably related to a State's legitimate interests, or when that excess is so great as to amount to a matter of constitutional concern. Yet whatever the difficulties of drawing a precise line, once we examine the award in this case, it is not difficult to say that this award lies on the line's far side. The severe lack of proportionality between the size of the award and the underlying punitive damages objectives shows that the award falls into the category 597 of "gross excessiveness" set forth in this Court's prior cases. These two reasons taken together overcome what would otherwise amount to a "strong presumption of validity." TXO, 509 U. S., at 457. And, for those two reasons, I conclude that the award in this unusual case violates the basic guarantee of nonarbitrary governmental behavior that the Due Process Clause provides. APPENDIX TO OPINION OF BREYER, J. Although I recognize that all estimates of historic rates of inflation are subject to dispute, including, I assume, the sources below, those sources suggest that the value of the 18th and 19th century judgments cited by amici is much less than the figures amici arrived at under their presumption of a constant 3% rate of inflation. In 1763, £1 (Eng.) was worth £1.73 Pennsylvania currency. See U. S. Bureau of the Census, Historical Statistics of the United States: Colonial Times to 1970, Series Z-585, p. 1198 (Bicentennial ed. 1975). For the period 1766-1772, £1 (Penn.) was worth $45.99 (U. S. 1991). See McCusker, How Much Is That in Real Money? A Historical Price Index for Use as a Deflator of Money Values in the Economy of the United States, 101 American Antiquarian Society 297, 333 (1992). Thus, £1 (Eng. 1763) is worth about $79.56 (U. S. 1991). Accounting for the 12% inflation of the U. S. dollar between 1991 and 1995 (when amici filed their brief), see Economic Indicators, 104th Cong., 2d Sess., p. 23 (Feb. 1996), £1 (Eng. 1763) is worth about $89.11 (U. S. 1995). Calculated another way, £1 (Eng. 1763) is worth about £72.84 (Eng. 1991). See McCusker, supra, at 312, 342, 350. And £1 (Eng. 1991) is worth $1.77 (U. S. 1991). See 78 Fed. Reserve Bulletin A68 (Feb. 1992). Thus, £1 (Eng. 1763) amounts to about $128.93 (U. S. 1991). Again, accounting for inflation between 1991 and 1995, this amounts to about $144.40 (U. S. 1995). 598 Thus, the above sources suggest that the £1,000 award in Wilkes in 1763 roughly amounts to between $89,110 and $144,440 today, not $1.5 million. And the £300 award in Huckle that same year would seem to be worth between $26,733 and $43,320 today, not $450,000. For the period of the Hewlett and Merest decisions, £1 (Eng. 1813) is worth about £25.3 (Eng. 1991). See McCusker, supra, at 344, 350. Using the 1991 exchange rate, £1 (Eng. 1813) is worth about $44.78 (U. S. 1991). Accounting for inflation between 1991 and 1995, this amounts to about $50.16 (U. S. 1995). Thus, the £2,000 and £500 awards in Hewlett and Merest would seem to be closer to $100,320 and $25,080, respectively, than to amici's estimates of $680,000 and $165,000.	The Alabama state courts have assessed the defendant $2 million in "punitive damages" for having knowingly failed to tell a BMW automobile buyer that, at a cost of $600, it had repainted portions of his new $40,000 car, thereby lowering its potential resale value by about 10%. The Court's opinion, which I join, explains why we have concluded that this award, in this case, was "grossly excessive" in relation to legitimate punitive damages objectives, and hence an arbitrary deprivation of life, liberty, or property in violation of the Due Process Clause. See Production (plurality opinion). Members of this Court have generally thought, however, that if "fair procedures were followed, a judgment that is a product of that process is entitled to a strong presumption 587 of validity." See also Pacific Mut. Life Ins. And the Court also has found that punitive damages procedures very similar to those followed here were not, by themselves, fundamentally unfair. Thus, I believe it important to explain why this presumption of validity is overcome in this instance. The reason flows from the Court's emphasis in upon the constitutional importance of legal standards that provide "reasonable constraints" within which "discretion is exercised," that assure "meaningful and adequate review by the trial court whenever a jury has fixed the punitive damages," and permit "appellate review [that] makes certain that the punitive damages are reasonable in their amount and rational in light of their purpose to punish what has occurred and to deter its repetition." See also This constitutional concern, itself harkening back to the Magna Carta, arises out of the basic unfairness of depriving citizens of life, liberty, or property, through the application, not of law and legal processes, but of arbitrary coercion. ; Requiring the application of law, rather than a decisionmaker's caprice, does more than simply provide citizens notice of what actions may subject them to punishment; it also helps to assure the uniform general treatment of similarly situated persons that is the essence of law itself. See Railway Express Agency, ("[T]here is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally"). 588 Legal standards need not be precise in order to satisfy this constitutional concern. See (internal quotation marks omitted). But they must offer some kind of constraint upon a jury or court's discretion, and thus protection against purely arbitrary behavior. The standards the Alabama courts applied here are vague and open ended to the point where they risk arbitrary results. In my view, although the vagueness of those standards does not, by itself, violate due process, see it does invite the kind of scrutiny the Court has given the particular verdict before us. See ; ("[I]t cannot be denied that the lack of clear guidance heightens the risk that arbitrariness, passion, or bias will replace dispassionate deliberation as the basis for the jury's verdict") (O'Connor, J., dissenting). This is because the standards, as the Alabama Supreme Court authoritatively interpreted them here, provided no significant constraints or protection against arbitrary results. First, the Alabama statute that permits punitive damages does not itself contain a standard that readily distinguishes between conduct warranting very small, and conduct warranting very large, punitive damages awards. That statute permits punitive damages in cases of "oppression, fraud, wantonness, or malice." (a) But the statute goes on to define those terms broadly, to encompass far more than the egregious conduct that those terms, at first reading, might seem to imply. An intentional misrepresentation, made through a statement or silence, can easily amount to "fraud" sufficient to warrant punitive damages. See 6-11-20(b)(1) ("Fraud" includes "intentional concealment of a material fact the concealing party had a 589 duty to disclose, which was gross, oppressive, or malicious and committed with the intention of thereby depriving a person or entity of property") ; 6-11 20(b)(2) ("Malice" includes any "wrongful act without just cause or excuse [w]ith an intent to injure the property of another") ; 6-11-20(b)(5) ("Oppression" includes "[s]ubjecting a person to unjust hardship in conscious disregard of that person's rights"). The statute thereby authorizes punitive damages for the most serious kinds of misrepresentations, say, tricking the elderly out of their life savings, for much less serious conduct, such as the failure to disclose repainting a car, at issue here, and for a vast range of conduct in between. Second, the Alabama courts, in this case, have applied the "factors" intended to constrain punitive damages awards in a way that belies that purpose. Green sets forth seven factors that appellate courts use to determine whether or not a jury award was "grossly excessive" and which, in principle, might make up for the lack of significant constraint in the statute. But, as the Alabama courts have authoritatively interpreted them, and as their application in this case illustrates, they impose little actual constraint. (a) Green requires that a punitive damages award "bear a reasonable relationship to the harm that is likely to occur from the defendant's conduct as well as to the harm that actually has occurred." But this standard does little to guide a determination of what counts as a "reasonable" relationship, as this case illustrates. The record evidence of past, present, or likely future harm consists of (a) $4,000 of harm to Dr. Gore's BMW; (b) 13 other similar Alabama instances; and (c) references to about 1,000 similar instances in other States. The Alabama Supreme Court, disregarding BMW's failure to make relevant objection to the out-of-state instances at trial (as was the court's right), held that the last mentioned, out-of-state instances did not 590 count as relevant harm. It went on to find "a reasonable relationship" between the harm and the $2 million punitive damages award without "consider[ing] those acts that occurred in other jurisdictions. " For reasons explored by the majority in greater depth, see ante, at 574-586, the relationship between this award and the underlying conduct seems well beyond the bounds of the "reasonable." To find a "reasonable relationship" between purely economic harm totaling $56,000, without significant evidence of future repetition, and a punitive award of $2 million is to empty the "reasonable relationship" test of meaningful content. As thus construed, it does not set forth a legal standard that could have significantly constrained the discretion of Alabama factfinders. (b) Green `s second factor is the "degree of reprehensibility" of the defendant's conduct. Green Like the "reasonable relationship" test, this factor provides little guidance on how to relate culpability to the size of an award. The Alabama court, in considering this factor, found "reprehensible" that BMW followed a conscious policy of not disclosing repairs to new cars when the cost of repairs amounted to less than 3% of the car's value. Of course, any conscious policy of not disclosing a repairwhere one knows the nondisclosure might cost the customer resale valueis "reprehensible" to some degree. But, for the reasons discussed by the majority, ante, at 575-580, I do not see how the Alabama courts could find conduct that (they assumed) caused $56,000 of relevant economic harm especially or unusually reprehensible enough to warrant $2 million in punitive damages, or a significant portion of that award. To find to the contrary, as the Alabama courts did, is not simply unreasonable; it is to make "reprehensibility" a concept without constraining force, i. e., to deprive the concept of its constraining power to protect against serious and capricious deprivations. 591 (c) Green `s third factor requires "punitive damages" to "remove the profit" of the illegal activity and "be in excess of the profit, so that the defendant recognizes a loss." Green 539 So. 2d, This factor has the ability to limit awards to a fixed, rational amount. But as applied, that concept's potential was not realized, for the court did not limit the award to anywhere near the $56,000 in profits evidenced in the record. Given the record's description of the conduct and its prevalence, this factor could not justify much of the $2 million award. (d) Green `s fourth factor is the "financial position" of the defendant. Since a fixed dollar award will punish a poor person more than a wealthy one, one can understand the relevance of this factor to the State's interest in retribution (though not necessarily to its interest in deterrence, given the more distant relation between a defendant's wealth and its responses to economic incentives). See and n. 28 (plurality opinion); ; -22; Industries of Vt., This factor, however, is not necessarily intended to act as a significant constraint on punitive awards. Rather, it provides an open-ended basis for inflating awards when the defendant is wealthy, as this case may illustrate. That does not make its use unlawful or inappropriate; it simply means that this factor cannot make up for the failure of other factors, such as "reprehensibility," to constrain significantly an award that purports to punish a defendant's conduct. (e) Green `s fifth factor is the "costs of litigation" and the State's desire "to encourage plaintiffs to bring wrongdoers to trial." 539 So. 2d, This standard provides meaningful constraint to the extent that the enhancement it authorized is linked to a fixed, ascertainable amount approximating actual costs, even when defined generously to reflect 5 the contingent nature of plaintiffs' victories. But as this case shows, the factor cannot operate as a constraint when an award much in excess of costs is approved for other reasons. An additional aspect of the standardthe need to "encourage plaintiffs to bring wrongdoers to trial"is a factor that does not constrain, but enhances, discretionary powerespecially when unsupported by evidence of a special need to encourage litigation (which the Alabama courts here did not mention). (f) Green `s sixth factor is whether or not "criminal sanctions have been imposed on the defendant for his conduct." This factor did not apply here. (g) Green `s seventh factor requires that "other civil actions" filed "against the same defendant, based on the same conduct," be considered in mitigation. That factor did not apply here. Thus, the first, second, and third Green factors, in principle, might sometimes act as constraints on arbitrary behavior. But as the Alabama courts interpreted those standards in this case, even taking those three factors together, they could not have significantly constrained the court system's ability to impose "grossly excessive" awards. Third, the state courts neither referred to, nor made any effort to find, nor enunciated any other standard that either directly, or indirectly as background, might have supplied the constraining legal force that the statute and Green standards (as interpreted here) lack. Dr. Gore did argue to the jury an economic theory based on the need to offset the totality of the harm that the defendant's conduct caused. Some theory of that general kind might have provided a significant constraint on arbitrary awards (at least where confined to the relevant harm-causing conduct, see ante, at 570-574). Some economists, for example, have argued for a standard that would deter illegal activity causing solely economic harm through the use of punitive damages awards that, as a whole, would take from a wrongdoer the total cost of the 593 harm caused. See, e. g., S. Shavell, Economic Analysis of Accident Law 162 ("If liability equals losses caused multiplied by the inverse of the probability of suit, injurers will act optimally under liability rules despite the chance that they will escape suit"); Cooter, Punitive Damages for Deterrence: When and How Much, My understanding of the intuitive essence of some of those theories, which I put in crude form (leaving out various qualifications), is that they could permit juries to calculate punitive damages by making a rough estimate of global harm, dividing that estimate by a similarly rough estimate of the number of successful lawsuits that would likely be brought, and adding generous attorney's fees and other costs. Smaller damages would not sufficiently discourage firms from engaging in the harmful conduct, while larger damages would "over-deter" by leading potential defendants to spend more to prevent the activity that causes the economic harm, say, through employee training, than the cost of the harm itself. See Galligan, Augmented Awards: The Efficient Evolution of Punitive Damages, Larger damages might also "double count" by including in the punitive damages award some of the compensatory, or punitive, damages that subsequent plaintiffs would also recover. The record before us, however, contains nothing suggesting that the Alabama Supreme Court, when determining the allowable award, applied any "economic" theory that might explain the $2 million recovery. Cf. at ). And courts properly tend to judge the rationality of judicial actions in terms of the reasons that were given, and the facts that were before the court, cf. not those that might have been given on the basis of some conceivable set of facts ). Therefore, reference to a constraining "economic" theory, which might have counseled more deferential review by this Court, is lacking in this case. Fourth, I cannot find any community understanding or historic practice that this award might exemplify and which, therefore, would provide background standards constraining arbitrary behavior and excessive awards. A punitive damages award of $2 million for intentional misrepresentation causing $56,000 of harm is extraordinary by historical standards, and, as far as I am aware, finds no analogue until relatively recent times. Amici for Dr. Gore attempt to show that this is not true, pointing to various historical cases which, according to their calculations, represented roughly equivalent punitive awards for similarly culpable conduct. See Brief for James D. A. Boyle et al. as Amici Curiae 4-5 (hereinafter Legal Historians' Brief). Among others, they cite Wilkes v. Wood, Lofft 1, 98 Eng. Rep. 489 (C. P. 1763) (£1,000 said to be equivalent of $1.5 million, for warrantless search of papers); Huckle v. Money, 2 Wills. 205, 95 Eng. Rep. 768 (K. B. 1763) (£, said to be $450,000, for 6-hour false imprisonment); Hewlett v. Cruchley, 5 Taunt. 277, 128 Eng. Rep. 696 (C. P. 1813) (£2,000, said to be $680,000, for malicious prosecution); Merest v. Harvey, 5 Taunt. 442, 128 Eng. Rep. 761 (C. P. 1814) (£500, said to be $165,000, for poaching). But amici apparently base their conversions on a mathematical assumption, namely, that inflation has progressed at a constant 3% rate of inflation. See Legal Historians' Brief 4. In fact, consistent, cumulative inflation is a modern phenomenon. See How Much Is That in Real Money? A Historical Price Index for Use as a Deflator 595 of Money Values in the Economy of the United States, 101 Proceedings of American Antiquarian Society 297, 310, 323 332 (19). Estimates based on historical rates of valuation, while highly approximate, suggest that the ancient extraordinary awards are small compared to the $2 million here at issue, or other modern punitive damages figures. See Appendix to this opinion, infra, at 597-598 (suggesting that the modern equivalent of the awards in the above cases is something like $150,000, $45,000, $100,000, and $25,000, respectively). And, as the majority opinion makes clear, the record contains nothing to suggest that the extraordinary size of the award in this case is explained by the extraordinary wrongfulness of the defendant's behavior, measured by historical or community standards, rather than arbitrariness or caprice. Fifth, there are no other legislative enactments here that classify awards and impose quantitative limits that would significantly cabin the fairly unbounded discretion created by the absence of constraining legal standards. Cf., e. g., Tex. Civ. Prac. & Rem. Code Ann. 41.008 (Supp. 1996) ; Conn. Gen. Stat. 52-240b (1995) (punitive damages may not exceed double compensatory damages in product liability cases); Fla. Stat. 768.73(1) ; Ga. Code Ann. 51-12-5.1(g) (Supp. 1995) The upshot is that the rules that purport to channel discretion in this kind of case, here did not do so in fact. That means that the award in this case was both (a) the product of a system of standards that did not significantly constrain a court's, and hence a jury's, discretion in making that award; and (b) grossly excessive in light of the State's legitimate punitive damages objectives. 596 The first of these reasons has special importance where courts review a jury-determined punitive damages award. That is because one cannot expect to direct jurors like legislators through the ballot box; nor can one expect those jurors to interpret law like judges, who work within a discipline and hierarchical organization that normally promotes roughly uniform interpretation and application of the law. Yet here Alabama expects jurors to act, at least a little, like legislators or judges, for it permits them, to a certain extent, to create public policy and to apply that policy, not to compensate a victim, but to achieve a policy-related objective outside the confines of the particular case. To the extent that neither clear legal principles nor fairly obvious historical or community-based standards (defining, say, especially egregious behavior) significantly constrain punitive damages awards, is there not a substantial risk of outcomes so arbitrary that they become difficult to square with the Constitution's assurance, to every citizen, of the law's protection? The standards here, as authoritatively interpreted, in my view, make this threat real and not theoretical. And, in these unusual circumstances, where legal standards offer virtually no constraint, I believe that this lack of constraining standards warrants this Court's detailed examination of the award. The second reasonthe severe disproportionality between the award and the legitimate punitive damages objectives reflects a judgment about a matter of degree. I recognize that it is often difficult to determine just when a punitive award exceeds an amount reasonably related to a State's legitimate interests, or when that excess is so great as to amount to a matter of constitutional concern. Yet whatever the difficulties of drawing a precise line, once we examine the award in this case, it is not difficult to say that this award lies on the line's far side. The severe lack of proportionality between the size of the award and the underlying punitive damages objectives shows that the award falls into the category 597 of "gross excessiveness" set forth in this Court's prior cases. These two reasons taken together overcome what would otherwise amount to a "strong presumption of validity." 509 U. S., And, for those two reasons, I conclude that the award in this unusual case violates the basic guarantee of nonarbitrary governmental behavior that the Due Process Clause provides. APPENDIX TO OPINION OF BREYER, J. Although I recognize that all estimates of historic rates of inflation are subject to dispute, including, I assume, the sources below, those sources suggest that the value of the 18th and 19th century judgments cited by amici is much less than the figures amici arrived at under their presumption of a constant 3% rate of inflation. In 1763, £1 (Eng.) was worth £1.73 Pennsylvania currency. See U. S. Bureau of the Census, Historical Statistics of the United States: Colonial Times to 1970, Series Z-585, p. 1198 (Bicentennial ed. 1975). For the period 1766-1772, £1 (Penn.) was worth $45.99 See How Much Is That in Real Money? A Historical Price Index for Use as a Deflator of Money Values in the Economy of the United States, 101 American Antiquarian Society 297, 333 (19). Thus, £1 (Eng. 1763) is worth about $79.56 Accounting for the 12% inflation of the U. S. dollar between 1991 and 1995 (when amici filed their brief), see Economic Indicators, 104th Cong., 2d Sess., p. 23 (Feb. 1996), £1 (Eng. 1763) is worth about $89.11 (U. S. 1995). Calculated another way, £1 (Eng. 1763) is worth about £72.84 See And £1 is worth $1.77 See 78 Fed. Reserve Bulletin A68 (Feb. 19). Thus, £1 (Eng. 1763) amounts to about $128.93 Again, accounting for inflation between 1991 and 1995, this amounts to about $144.40 (U. S. 1995). 598 Thus, the above sources suggest that the £1,000 award in Wilkes in 1763 roughly amounts to between $89,110 and $144,440 today, not $1.5 million. And the £ award in Huckle that same year would seem to be worth between $26,733 and $43,320 today, not $450,000. For the period of the Hewlett and Merest decisions, £1 (Eng. 1813) is worth about £25.3 See Using the 1991 exchange rate, £1 (Eng. 1813) is worth about $44.78 Accounting for inflation between 1991 and 1995, this amounts to about $50.16 (U. S. 1995). Thus, the £2,000 and £500 awards in Hewlett and Merest would seem to be closer to $100,320 and $25,080, respectively, than to amici's estimates of $680,000 and $165,000.	1,982
Justice Scalia	dissenting	false	BMW of North America, Inc. v. Gore	1996-05-28	null	https://www.courtlistener.com/opinion/118026/bmw-of-north-america-inc-v-gore/	https://www.courtlistener.com/api/rest/v3/clusters/118026/	1,996	1995-052	1	5	4	Today we see the latest manifestation of this Court's recent and increasingly insistent "concern about punitive damages that `run wild.' " Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 18 (1991). Since the Constitution does not make that concern any of our business, the Court's activities in this area are an unjustified incursion into the province of state governments. In earlier cases that were the prelude to this decision, I set forth my view that a state trial procedure that commits the decision whether to impose punitive damages, and the amount, to the discretion of the jury, subject to some judicial review for "reasonableness," furnishes a defendant with all the process that is "due." See TXO Production Corp. v. Alliance Resources Corp., 509 U.S. 443, 470 (1993) (Scalia, J., concurring in judgment); Haslip, supra, at 25-28 (Scalia, J., concurring in judgment); cf. Honda Motor Co. v. Oberg, 512 U.S. 415, 435-436 (1994) (Scalia, J., concurring). I do not regard the Fourteenth Amendment's Due Process Clause as a secret repository of substantive guarantees against 599 "unfairness"neither the unfairness of an excessive civil compensatory award, nor the unfairness of an "unreasonable" punitive award. What the Fourteenth Amendment's procedural guarantee assures is an opportunity to contest the reasonableness of a damages judgment in state court; but there is no federal guarantee a damages award actually be reasonable. See TXO, supra, at 471 (Scalia, J., concurring in judgment). This view, which adheres to the text of the Due Process Clause, has not prevailed in our punitive damages cases. See TXO, 509 U. S., at 453-462 (plurality opinion); id., at 478 481 (O'Connor, J., dissenting); Haslip, supra, at 18. When, however, a constitutional doctrine adopted by the Court is not only mistaken but also insusceptible of principled application, I do not feel bound to give it stare decisis effect indeed, I do not feel justified in doing so. See, e. g., Witte v. United States, 515 U.S. 389, 406 (1995) (Scalia, J., concurring in judgment); Walton v. Arizona, 497 U.S. 639, 673 (1990) (Scalia, J., concurring in judgment in part and dissenting in part). Our punitive damages jurisprudence compels such a response. The Constitution provides no warrant for federalizing yet another aspect of our Nation's legal culture (no matter how much in need of correction it may be), and the application of the Court's new rule of constitutional law is constrained by no principle other than the Justices' subjective assessment of the "reasonableness" of the award in relation to the conduct for which it was assessed. Because today's judgment represents the first instance of this Court's invalidation of a state-court punitive assessment as simply unreasonably large, I think it a proper occasion to discuss these points at some length. I The most significant aspects of today's decisionthe identification of a "substantive due process" right against a "grossly excessive" award, and the concomitant assumption 600 of ultimate authority to decide anew a matter of "reasonableness" resolved in lower court proceedingsare of course not new. Haslip and TXO revived the notion, moribund since its appearance in the first years of this century, that the measure of civil punishment poses a question of constitutional dimension to be answered by this Court. Neither of those cases, however, nor any of the precedents upon which they relied, actually took the step of declaring a punitive award unconstitutional simply because it was "too big." At the time of adoption of the Fourteenth Amendment, it was well understood that punitive damages represent the assessment by the jury, as the voice of the community, of the measure of punishment the defendant deserved. See, e. g., Barry v. Edmunds, 116 U.S. 550, 565 (1886); Missouri Pacific R. Co. v. Humes, 115 U.S. 512, 521 (1885); Day v. Woodworth, 13 How. 363, 371 (1852). See generally Haslip, supra, at 25-27 (Scalia, J., concurring in judgment). Today's decision, though dressed up as a legal opinion, is really no more than a disagreement with the community's sense of indignation or outrage expressed in the punitive award of the Alabama jury, as reduced by the State Supreme Court. It reflects not merely, as the concurrence candidly acknowledges, "a judgment about a matter of degree," ante, at 596; but a judgment about the appropriate degree of indignation or outrage, which is hardly an analytical determination. There is no precedential warrant for giving our judgment priority over the judgment of state courts and juries on this matter. The only support for the Court's position is to be found in a handful of errant federal cases, bunched within a few years of one other, which invented the notion that an unfairly severe civil sanction amounts to a violation of constitutional liberties. These were the decisions upon which the TXO plurality relied in pronouncing that the Due Process Clause "imposes substantive limits `beyond which penalties may not go,' " 509 U.S., at 454 (quoting Seaboard Air Line R. Co. v. Seegers, 207 U.S. 73, 78 (1907)); see also 509 U. S., 601 at 478-481 (O'Connor, J., dissenting); Haslip, supra, at 18. Although they are our precedents, they are themselves too shallowly rooted to justify the Court's recent undertaking. The only case relied upon in which the Court actually invalidated a civil sanction does not even support constitutional review for excessiveness, since it really concerned the validity, as a matter of procedural due process, of state legislation that imposed a significant penalty on a common carrier which lacked the means of determining the legality of its actions before the penalty was imposed. See Southwestern Telegraph & Telephone Co. v. Danaher, 238 U.S. 482, 489-491 (1915). The amount of the penalty was not a subject of independent scrutiny. As for the remaining cases, while the opinions do consider arguments that statutory penalties can, by reason of their excessiveness, violate due process, not a single one of these judgments invalidates a damages award. See Seaboard, supra, at 78-79; Waters-Pierce Oil Co. v. Texas (No. 1), 212 U.S. 86, 111-112 (1909); Standard Oil Co. of Ind. v. Missouri, 224 U.S. 270, 286, 290 (1912); St. Louis, I. M. & S. R. Co. v. Williams, 251 U.S. 63, 66-67 (1919). More importantly, this latter group of caseswhich again are the sole precedential foundation put forward for the rule of constitutional law espoused by today's Courtsimply fabricated the "substantive due process" right at issue. Seaboard assigned no precedent to its bald assertion that the Constitution imposes "limits beyond which penalties may not go," 207 U.S., at 78. Waters-Pierce cited only Coffey v. County of Harlan, 204 U.S. 659 (1907), a case which inquired into the constitutionality of state procedure, id., at 662-663. Standard Oil simply cited Waters-Pierce, and St. Louis, I. M. & S. R. Co. offered in addition to these cases only Collins v. Johnston, 237 U.S. 502 (1915), which said nothing to support the notion of a "substantive due process" right against excessive civil penalties, but to the contrary asserted that the prescribing and imposing of criminal punishment were "functions peculiarly belonging to the several States," 602 id., at 509-510. Thus, the only authority for the Court's position is simply not authoritative. These cases fall far short of what is needed to supplant this country's longstanding practice regarding exemplary awards, see, e. g., Haslip, 499 U. S., at 15-18; id., at 25-28 (Scalia, J., concurring in judgment). II One might understand the Court's eagerness to enter this field, rather than leave it with the state legislatures, if it had something useful to say. In fact, however, its opinion provides virtually no guidance to legislatures, and to state and federal courts, as to what a "constitutionally proper" level of punitive damages might be. We are instructed at the outset of Part II of the Court's opinionthe beginning of its substantive analysisthat "the federal excessiveness inquiry . . . begins with an identification of the state interests that a punitive award is designed to serve." Ante, at 568. On first reading this, one is faced with the prospect that federal punitive damages law (the new field created by today's decision) will be beset by the sort of "interest analysis" that has laid waste the formerly comprehensible field of conflict of laws. The thought that each assessment of punitive damages, as to each offense, must be examined to determine the precise "state interests" pursued, is most unsettling. Moreover, if those "interests" are the most fundamental determinant of an award, one would think that due process would require the assessing jury to be instructed about them. It appears, however (and I certainly hope), that all this is a false alarm. As Part II of the Court's opinion unfolds, it turns out to be directed, not to the question "How much punishment is too much?" but rather to the question "Which acts can be punished?" "Alabama does not have the power," the Court says, "to punish BMW for conduct that was lawful where it occurred and that had no impact on Alabama or its residents." Ante, at 572-573. That may be true, though 603 only in the narrow sense that a person cannot be held liable to be punished on the basis of a lawful act. But if a person has been held subject to punishment because he committed an un lawful act, the degree of his punishment assuredly can be increased on the basis of any other conduct of his that displays his wickedness, unlawful or not. Criminal sentences can be computed, we have said, on the basis of "information concerning every aspect of a defendant's life," Williams v. New York, 337 U.S. 241, 250-252 (1949). The Court at one point seems to acknowledge this, observing that, although a sentencing court "[cannot] properly punish lawful conduct," it may in assessing the penalty "consider . . . lawful conduct that bears on the defendant's character." Ante, at 573, n. 19. That concession is quite incompatible, however, with the later assertion that, since "neither the jury nor the trial court was presented with evidence that any of BMW's out-of-state conduct was unlawful," the Alabama Supreme Court "therefore properly eschewed reliance on BMW's outof-state conduct, . . . and based its remitted award solely on conduct that occurred within Alabama." Ante, at 573-574. Why could the Supreme Court of Alabama not consider lawful (but disreputable) conduct, both inside and outside Alabama, for the purpose of assessing just how bad an actor BMW was? The Court follows up its statement that "Alabama does not have the power . . . to punish BMW for conduct that was lawful where it occurred" with the statement: "Nor may Alabama impose sanctions on BMW in order to deter conduct that is lawful in other jurisdictions." Ante, at 572-573. The Court provides us no citation of authority to support this propositionother than the barely analogous cases cited earlier in the opinion, see ante, at 571-572and I know of none. These significant issues pronounced upon by the Court are not remotely presented for resolution in the present case. There is no basis for believing that Alabama has sought to control conduct elsewhere. The statutes at issue merely 604 permit civil juries to treat conduct such as petitioner's as fraud, and authorize an award of appropriate punitive damages in the event the fraud is found to be "gross, oppressive, or malicious," Ala. Code § 6-11-20(b)(1) (1993). To be sure, respondent did invite the jury to consider out-of-state conduct in its calculation of damages, but any increase in the jury's initial award based on that consideration is not a component of the remitted judgment before us. As the Court several times recognizes, in computing the amount of the remitted award the Alabama Supreme Courtwhether it was constitutionally required to or not"expressly disclaimed any reliance on acts that occurred in other jurisdictions." Ante, at 567 (internal quotation marks omitted); see also ante, at 573-574.[] Thus, the only question presented by this case is whether that award, limited to petitioner's Alabama conduct and viewed in light of the factors identified as properly informing the inquiry, is excessive. The Court's sweeping (and largely unsupported) statements regarding the relationship of punitive awards to lawful or unlawful out-of-state conduct are the purest dicta. III In Part III of its opinion, the Court identifies "[t]hree guideposts" that lead it to the conclusion that the award in this case is excessive: degree of reprehensibility, ratio between punitive award and plaintiff's actual harm, and legislative 605 sanctions provided for comparable misconduct. Ante, at 574-585. The legal significance of these "guideposts" is nowhere explored, but their necessary effect is to establish federal standards governing the hitherto exclusively state law of damages. Apparently (though it is by no means clear) all three federal "guideposts" can be overridden if "necessary to deter future misconduct," ante, at 584a loophole that will encourage state reviewing courts to uphold awards as necessary for the "adequat[e] protect[ion]" of state consumers, ibid. By effectively requiring state reviewing courts to concoct rationalizationswhether within the "guideposts" or through the loopholeto justify the intuitive punitive reactions of state juries, the Court accords neither category of institution the respect it deserves. Of course it will not be easy for the States to comply with this new federal law of damages, no matter how willing they are to do so. In truth, the "guideposts" mark a road to nowhere; they provide no real guidance at all. As to "degree of reprehensibility" of the defendant's conduct, we learn that "`nonviolent crimes are less serious than crimes marked by violence or the threat of violence,' " ante, at 576 (quoting Solem v. Helm, 463 U.S. 277, 292-293 (1983)), and that "`trickery and deceit' " are "more reprehensible than negligence," ante, at 576. As to the ratio of punitive to compensatory damages, we are told that a "`general concer[n] of reasonableness . . . enter[s] into the constitutional calculus,' " ante, at 583 (quoting TXO, 509 U. S., at 458)though even "a breathtaking 500 to 1" will not necessarily do anything more than "`raise a suspicious judicial eyebrow,' " ante, at 583 (quoting TXO, supra, at 481 (O'Connor, J., dissenting), an opinion which, when confronted with that "breathtaking" ratio, approved it). And as to legislative sanctions provided for comparable misconduct, they should be accorded "`substantial deference,' " ante, at 583 (quoting Browning-Ferris Industries of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 301 (1989) (O'Connor, J., concurring in part and dissenting 606 in part)). One expects the Court to conclude: "To thine own self be true." These crisscrossing platitudes yield no real answers in no real cases. And it must be noted that the Court nowhere says that these three "guideposts" are the only guideposts; indeed, it makes very clear that they are notexplaining away the earlier opinions that do not really follow these "guideposts" on the basis of additional factors, thereby "reiterat[ing] our rejection of a categorical approach." Ante, at 582. In other words, even these utter platitudes, if they should ever happen to produce an answer, may be overridden by other unnamed considerations. The Court has constructed a framework that does not genuinely constrain, that does not inform state legislatures and lower courtsthat does nothing at all except confer an artificial air of doctrinal analysis upon its essentially ad hoc determination that this particular award of punitive damages was not "fair." The Court distinguishes today's result from Haslip and TXO partly on the ground that "the record in this case discloses no deliberate false statements, acts of affirmative misconduct, or concealment of evidence of improper motive, such as were present in Haslip and TXO. " Ante, at 579. This seemingly rejects the findings necessarily made by the jurythat petitioner had committed a fraud that was "gross, oppressive, or malicious," Ala. Code § 6-11-20(b)(1) (1993). Perhaps that rejection is intentional; the Court does not say. The relationship between judicial application of the new "guideposts" and jury findings poses a real problem for the Court, since as a matter of logic there is no more justification for ignoring the jury's determination as to how reprehensible petitioner's conduct was (i. e., how much it deserves to be punished), than there is for ignoring its determination that it was reprehensible at all (i. e., that the wrong was willful and punitive damages are therefore recoverable). That the issue has been framed in terms of a constitutional right against unreasonably excessive awards should not obscure 607 the fact that the logical and necessary consequence of the Court's approach is the recognition of a constitutional right against unreasonably imposed awards as well. The elevation of "fairness" in punishment to a principle of "substantive due process" means that every punitive award unreasonably imposed is unconstitutional; such an award is by definition excessive, since it attaches a penalty to conduct undeserving of punishment. Indeed, if the Court is correct, it must be that every claim that a state jury's award of compensatory damages is "unreasonable" (because not supported by the evidence) amounts to an assertion of constitutional injury. See TXO, supra, at 471 (Scalia, J., concurring in judgment). And the same would be true for determinations of liability. By today's logic, every dispute as to evidentiary sufficiency in a state civil suit poses a question of constitutional moment, subject to review in this Court. That is a stupefying proposition. For the foregoing reasons, I respectfully dissent.	Today we see the latest manifestation of this Court's recent and increasingly insistent "concern about punitive damages that `run wild.' " Pacific Mut. Life Ins. Since the Constitution does not make that concern any of our business, the Court's activities in this area are an unjustified incursion into the province of state governments. In earlier cases that were the prelude to this decision, I set forth my view that a state trial procedure that commits the decision whether to impose punitive damages, and the amount, to the discretion of the jury, subject to some judicial review for "reasonableness," furnishes a defendant with all the process that is "due." See Production ; ; cf. Honda Motor I do not regard the Fourteenth Amendment's Due Process Clause as a secret repository of substantive guarantees against 599 "unfairness"neither the unfairness of an excessive civil compensatory award, nor the unfairness of an "unreasonable" punitive award. What the Fourteenth Amendment's procedural guarantee assures is an opportunity to contest the reasonableness of a damages judgment in state court; but there is no federal guarantee a damages award actually be reasonable. See This view, which adheres to the text of the Due Process Clause, has not prevailed in our punitive damages cases. See -462 ; at 4 481 ; at When, however, a constitutional doctrine adopted by the Court is not only mistaken but also insusceptible of principled application, I do not feel bound to give it stare decisis effect indeed, I do not feel justified in doing so. See, e. g., ; Our punitive damages jurisprudence compels such a response. The Constitution provides no warrant for federalizing yet another aspect of our Nation's legal culture (no matter how much in need of correction it may be), and the application of the Court's new rule of constitutional law is constrained by no principle other than the Justices' subjective assessment of the "reasonableness" of the award in relation to the conduct for which it was assessed. Because today's judgment represents the first instance of this Court's invalidation of a state-court punitive assessment as simply unreasonably large, I think it a proper occasion to discuss these points at some length. I The most significant aspects of today's decisionthe identification of a "substantive due process" right against a "grossly excessive" award, and the concomitant assumption 600 of ultimate authority to decide anew a matter of "reasonableness" resolved in lower court proceedingsare of course not new. and revived the notion, moribund since its appearance in the first years of this century, that the measure of civil punishment poses a question of constitutional dimension to be answered by this Court. Neither of those cases, however, nor any of the precedents upon which they relied, actually took the step of declaring a punitive award unconstitutional simply because it was "too big." At the time of adoption of the Fourteenth Amendment, it was well understood that punitive damages represent the assessment by the jury, as the voice of the community, of the measure of punishment the defendant deserved. See, e. g., (86); Missouri Pacific R. (85); (52). See generally Today's decision, though dressed up as a legal opinion, is really no more than a disagreement with the community's sense of indignation or outrage expressed in the punitive award of the Alabama jury, as reduced by the State Supreme Court. It reflects not merely, as the concurrence candidly acknowledges, "a judgment about a matter of degree," ante, at 596; but a judgment about the appropriate degree of indignation or outrage, which is hardly an analytical determination. There is no precedential warrant for giving our judgment priority over the judgment of state courts and juries on this matter. The only support for the Court's position is to be found in a handful of errant federal cases, bunched within a few years of one other, which invented the notion that an unfairly severe civil sanction amounts to a violation of constitutional liberties. These were the decisions upon which the plurality relied in pronouncing that the Due Process Clause "imposes substantive limits `beyond which penalties may not go,' " ); see also 509 U. S., 601 at 4-481 ; at Although they are our precedents, they are themselves too shallowly rooted to justify the Court's recent undertaking. The only case relied upon in which the Court actually invalidated a civil sanction does not even support constitutional review for excessiveness, since it really concerned the validity, as a matter of procedural due process, of state legislation that imposed a significant penalty on a common carrier which lacked the means of determining the legality of its actions before the penalty was imposed. See Southwestern Telegraph & Telephone The amount of the penalty was not a subject of independent scrutiny. As for the remaining cases, while the opinions do consider arguments that statutory penalties can, by reason of their excessiveness, violate due process, not a single one of these judgments invalidates a damages award. See at -79; Waters-Pierce Oil ; Standard Oil Co. of ; St. Louis, I. M. & S. R. More importantly, this latter group of caseswhich again are the sole precedential foundation put forward for the rule of constitutional law espoused by today's Courtsimply fabricated the "substantive due process" right at issue. assigned no precedent to its bald assertion that the Constitution imposes "limits beyond which penalties may not go," 207 U.S., at Waters-Pierce cited only a case which inquired into the constitutionality of state procedure, Standard Oil simply cited Waters-Pierce, and St. Louis, I. M. & S. R. Co. offered in addition to these cases only which said nothing to support the notion of a "substantive due process" right against excessive civil penalties, but to the contrary asserted that the prescribing and imposing of criminal punishment were "functions peculiarly belonging to the several States," 602 Thus, the only authority for the Court's position is simply not authoritative. These cases fall far short of what is needed to supplant this country's longstanding practice regarding exemplary awards, see, e. g., -; II One might understand the Court's eagerness to enter this field, rather than leave it with the state legislatures, if it had something useful to say. In fact, however, its opinion provides virtually no guidance to legislatures, and to state and federal courts, as to what a "constitutionally proper" level of punitive damages might be. We are instructed at the outset of Part II of the Court's opinionthe beginning of its substantive analysisthat "the federal excessiveness inquiry begins with an identification of the state interests that a punitive award is designed to serve." Ante, at 568. On first reading this, one is faced with the prospect that federal punitive damages law (the new field created by today's decision) will be beset by the sort of "interest analysis" that has laid waste the formerly comprehensible field of conflict of laws. The thought that each assessment of punitive damages, as to each offense, must be examined to determine the precise "state interests" pursued, is most unsettling. Moreover, if those "interests" are the most fundamental determinant of an award, one would think that due process would require the assessing jury to be instructed about them. It appears, however (and I certainly hope), that all this is a false alarm. As Part II of the Court's opinion unfolds, it turns out to be directed, not to the question "How much punishment is too much?" but rather to the question "Which acts can be punished?" "Alabama does not have the power," the Court says, "to punish BMW for conduct that was lawful where it occurred and that had no impact on Alabama or its residents." Ante, at 572-573. That may be true, though 603 only in the narrow sense that a person cannot be held liable to be punished on the basis of a lawful act. But if a person has been held subject to punishment because he committed an un lawful act, the degree of his punishment assuredly can be increased on the basis of any other conduct of his that displays his wickedness, unlawful or not. Criminal sentences can be computed, we have said, on the basis of "information concerning every aspect of a defendant's life," The Court at one point seems to acknowledge this, observing that, although a sentencing court "[cannot] properly punish lawful conduct," it may in assessing the penalty "consider lawful conduct that bears on the defendant's character." Ante, at 573, n. 19. That concession is quite incompatible, however, with the later assertion that, since "neither the jury nor the trial court was presented with evidence that any of BMW's out-of-state conduct was unlawful," the Alabama Supreme Court "therefore properly eschewed reliance on BMW's outof-state conduct, and based its remitted award solely on conduct that occurred within Alabama." Ante, at 573-574. Why could the Supreme Court of Alabama not consider lawful (but disreputable) conduct, both inside and outside Alabama, for the purpose of assessing just how bad an actor BMW was? The Court follows up its statement that "Alabama does not have the power to punish BMW for conduct that was lawful where it occurred" with the statement: "Nor may Alabama impose sanctions on BMW in order to deter conduct that is lawful in other jurisdictions." Ante, at 572-573. The Court provides us no citation of authority to support this propositionother than the barely analogous cases cited earlier in the opinion, see ante, at 571-572and I know of none. These significant issues pronounced upon by the Court are not remotely presented for resolution in the present case. There is no basis for believing that Alabama has sought to control conduct elsewhere. The statutes at issue merely 604 permit civil juries to treat conduct such as petitioner's as fraud, and authorize an award of appropriate punitive damages in the event the fraud is found to be "gross, oppressive, or malicious," (b)(1) To be sure, respondent did invite the jury to consider out-of-state conduct in its calculation of damages, but any increase in the jury's initial award based on that consideration is not a component of the remitted judgment before us. As the Court several times recognizes, in computing the amount of the remitted award the Alabama Supreme Courtwhether it was constitutionally required to or not"expressly disclaimed any reliance on acts that occurred in other jurisdictions." Ante, at 567 (internal quotation marks omitted); see also ante, at 573-574.[] Thus, the only question presented by this case is whether that award, limited to petitioner's Alabama conduct and viewed in light of the factors identified as properly informing the inquiry, is excessive. The Court's sweeping (and largely unsupported) statements regarding the relationship of punitive awards to lawful or unlawful out-of-state conduct are the purest dicta. III In Part III of its opinion, the Court identifies "[t]hree guideposts" that lead it to the conclusion that the award in this case is excessive: degree of reprehensibility, ratio between punitive award and plaintiff's actual harm, and legislative 605 sanctions provided for comparable misconduct. Ante, at 574-585. The legal significance of these "guideposts" is nowhere explored, but their necessary effect is to establish federal standards governing the hitherto exclusively state law of damages. Apparently (though it is by no means clear) all three federal "guideposts" can be overridden if "necessary to deter future misconduct," ante, at 584a loophole that will encourage state reviewing courts to uphold awards as necessary for the "adequat[e] protect[ion]" of state consumers, By effectively requiring state reviewing courts to concoct rationalizationswhether within the "guideposts" or through the loopholeto justify the intuitive punitive reactions of state juries, the Court accords neither category of institution the respect it deserves. Of course it will not be easy for the States to comply with this new federal law of damages, no matter how willing they are to do so. In truth, the "guideposts" mark a road to nowhere; they provide no real guidance at all. As to "degree of reprehensibility" of the defendant's conduct, we learn that "`nonviolent crimes are less serious than crimes marked by violence or the threat of violence,' " ante, at 576 ), and that "`trickery and deceit' " are "more reprehensible than negligence," ante, at 576. As to the ratio of punitive to compensatory damages, we are told that a "`general concer[n] of reasonableness enter[s] into the constitutional calculus,' " ante, at 583 (quoting )though even "a breathtaking 500 to 1" will not necessarily do anything more than "`raise a suspicious judicial eyebrow,' " ante, at 583 (quoting an opinion which, when confronted with that "breathtaking" ratio, approved it). And as to legislative sanctions provided for comparable misconduct, they should be accorded "`substantial deference,' " ante, at 583 ). One expects the Court to conclude: "To thine own self be true." These crisscrossing platitudes yield no real answers in no real cases. And it must be noted that the Court nowhere says that these three "guideposts" are the only guideposts; indeed, it makes very clear that they are notexplaining away the earlier opinions that do not really follow these "guideposts" on the basis of additional factors, thereby "reiterat[ing] our rejection of a categorical approach." Ante, at 582. In other words, even these utter platitudes, if they should ever happen to produce an answer, may be overridden by other unnamed considerations. The Court has constructed a framework that does not genuinely constrain, that does not inform state legislatures and lower courtsthat does nothing at all except confer an artificial air of doctrinal analysis upon its essentially ad hoc determination that this particular award of punitive damages was not "fair." The Court distinguishes today's result from and partly on the ground that "the record in this case discloses no deliberate false statements, acts of affirmative misconduct, or concealment of evidence of improper motive, such as were present in and " Ante, at 579. This seemingly rejects the findings necessarily made by the jurythat petitioner had committed a fraud that was "gross, oppressive, or malicious," (b)(1) Perhaps that rejection is intentional; the Court does not say. The relationship between judicial application of the new "guideposts" and jury findings poses a real problem for the Court, since as a matter of logic there is no more justification for ignoring the jury's determination as to how reprehensible petitioner's conduct was (i. e., how much it deserves to be punished), than there is for ignoring its determination that it was reprehensible at all (i. e., that the wrong was willful and punitive damages are therefore recoverable). That the issue has been framed in terms of a constitutional right against unreasonably excessive awards should not obscure *607 the fact that the logical and necessary consequence of the Court's approach is the recognition of a constitutional right against unreasonably imposed awards as well. The elevation of "fairness" in punishment to a principle of "substantive due process" means that every punitive award unreasonably imposed is unconstitutional; such an award is by definition excessive, since it attaches a penalty to conduct undeserving of punishment. Indeed, if the Court is correct, it must be that every claim that a state jury's award of compensatory damages is "unreasonable" (because not supported by the evidence) amounts to an assertion of constitutional injury. See And the same would be true for determinations of liability. By today's logic, every dispute as to evidentiary sufficiency in a state civil suit poses a question of constitutional moment, subject to review in this Court. That is a stupefying proposition. For the foregoing reasons, I respectfully dissent.	1,983
Justice Ginsburg	second_dissenting	false	BMW of North America, Inc. v. Gore	1996-05-28	null	https://www.courtlistener.com/opinion/118026/bmw-of-north-america-inc-v-gore/	https://www.courtlistener.com/api/rest/v3/clusters/118026/	1,996	1995-052	1	5	4	The Court, I am convinced, unnecessarily and unwisely ventures into territory traditionally within the States' domain, and does so in the face of reform measures recently adopted or currently under consideration in legislative arenas. The Alabama Supreme Court, in this case, endeavored to follow this Court's prior instructions; and, more recently, Alabama's highest court has installed further controls on awards of punitive damages (see infra, at 613-614, n. 6). I would therefore leave the state court's judgment undisturbed, and resist unnecessary intrusion into an area dominantly of state concern. I The respect due the Alabama Supreme Court requires that we strip from this case a false issue: No impermissible "extraterritoriality" infects the judgment before us; the excessiveness 608 of the award is the sole issue genuinely presented. The Court ultimately so recognizes, see ante, at 573-574, but further clarification is in order. Dr. Gore's experience was not unprecedented among customers who bought BMW vehicles sold as flawless and brand-new. In addition to his own encounter, Gore showed, through paint repair orders introduced at trial, that on 983 other occasions since 1983, BMW had shipped new vehicles to dealers without disclosing paint repairs costing at least $300, Tr. 585-586; at least 14 of the repainted vehicles, the evidence also showed, were sold as new and undamaged to consumers in Alabama. 646 So. 2d 619, 623 (Ala. 1994). Sales nationwide, Alabama's Supreme Court said, were admissible "as to the issue of a `pattern and practice' of such acts." Id., at 627. There was "no error," the court reiterated, "in the admission of the evidence that showed how pervasive the nondisclosure policy was and the intent behind BMW NA's adoption of it." Id., at 628. That determination comports with this Court's expositions. See TXO Production Corp. v. Alliance Resources Corp., 509 U.S. 443, 462, and n. 28 (1993) (characterizing as "well-settled" the admissibility of "evidence of [defendant's] alleged wrongdoing in other parts of the country" and of defendant's "wealth"); see also Brief for Petitioner 22 (recognizing that similar acts, out-of-state, traditionally have been considered relevant "for the limited purpose of determining that the conduct before the [c]ourt was reprehensible because it was part of a pattern rather than an isolated incident"). Alabama's highest court next declared that the "jury could not use the number of similar acts that a defendant has committed in other jurisdictions as a multiplier when determining the dollar amount of a punitive damages award. Such evidence may not be considered in setting the size of the civil penalty, because neither the jury nor the trial court had evidence before it showing in which states the conduct was wrongful." 609 646 So. 2d, at 627 (emphasis in original) (footnote omitted). Because the Alabama Supreme Court provided this clear statement of the State's law, the multiplier problem encountered in Gore's case is not likely to occur again. Now, as a matter of Alabama law, it is plainly impermissible to assess punitive damages by multiplication based on out-of-state events not shown to be unlawful. See, e. g., Independent Life and Accident Ins. Co. v. Harrington, 658 So. 2d 892, 902-903 (Ala. 1994) (under BMW v. Gore, trial court erred in relying on defendant insurance company's out-of-state insurance policies in determining harm caused by defendant's unlawful actions). No Alabama authority, it bears emphasisno statute, judicial decision, or trial judge instructionever countenanced the jury's multiplication of the $4,000 diminution in value estimated for each refinished car by the number of such cars (approximately 1,000) shown to have been sold nationwide. The sole prompt to the jury to use nationwide sales as a multiplier came from Gore's lawyer during summation. App. 31, Tr. 812-813. Notably, counsel for BMW failed to object to Gore's multiplication suggestion, even though BMW's counsel interrupted to make unrelated objections four other times during Gore's closing statement. Tr. 810 811, 854-855, 858, 870-871. Nor did BMW's counsel request a charge instructing the jury not to consider out-of-state sales in calculating the punitive damages award. See Record 513-529 (listing all charges requested by counsel). Following the verdict, BMW's counsel challenged the admission of the paint repair orders, but not, alternately, the jury's apparent use of the orders in a multiplication exercise. Curiously, during postverdict argument, BMW's counsel urged that if the repair orders were indeed admissible, then Gore would have a "full right" to suggest a multiplier-based disgorgement. Tr. 932. 610 In brief, Gore's case is idiosyncratic. The jury's improper multiplication, tardily featured by petitioner, is unlikely to recur in Alabama and does not call for error correction by this Court. Because the jury apparently (and erroneously) had used acts in other States as a multiplier to arrive at a $4 million sum for punitive damages, the Alabama Supreme Court itself determined "`the maximum amount that a properly functioning jury could have awarded.' " 646 So. 2d, at 630 (Houston, J., concurring specially) (quoting Big B, Inc. v. Cottingham, 634 So. 2d 999, 1006 (Ala. 1993)). The per curiam opinion emphasized that in arriving at $2 million as "the amount of punitive damages to be awarded in this case, [the court did] not consider those acts that occurred in other jurisdictions." 646 So. 2d, at 628 (emphasis in original). As this Court recognizes, the Alabama high court "properly eschewed reliance on BMW's out-of-state conduct and based its remitted award solely on conduct that occurred within Alabama." Ante, at 573-574 (citation omitted). In sum, the Alabama Supreme Court left standing the jury's decision that the facts warranted an award of punitive damagesa determination not contested in this Courtand the state court concluded that, considering only acts in Alabama, $2 million was "a constitutionally reasonable punitive damages award." 646 So. 2d, at 629. II A Alabama's Supreme Court reports that it "thoroughly and painstakingly" reviewed the jury's award, ibid. , according to principles set out in its own pathmarking decisions and in this Court's opinions in TXO and Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 21 (1991). 646 So. 2d, at 621. The Alabama court said it gave weight to several factors, including BMW's deliberate ("reprehensible") presentation of refinished cars as new and undamaged, without disclosing that the value of those cars had been reduced by an estimated 611 10%,[1] the financial position of the defendant, and the costs of litigation. Id., at 625-626. These standards, we previously held, "impos[e] a sufficiently definite and meaningful constraint on the discretion of Alabama factfinders in awarding punitive damages." Haslip, 499 U. S., at 22; see also TXO, 509 U. S., at 462, n. 28. Alabama's highest court could have displayed its labor pains more visibly,[2] but its judgment is nonetheless entitled to a presumption of legitimacy. See Rowan v. Runnels, 5 How. 134, 139 (1847) ("[T]his court will always feel itself bound to respect the decisions of the State courts, and from the time they are made will regard them as conclusive in all cases upon the construction of their own constitution and laws."). We accept, of course, that Alabama's Supreme Court applied the State's own law correctly. Under that law, the State's objectives"punishment and deterrence"guide punitive damages awards. See Birmingham v. Benson, 631 So. 2d 902, 904 (Ala. 1994). Nor should we be quick to find a constitutional infirmity when the highest state court endeavored a corrective for one counsel's slip and the other's oversightcounsel for plaintiff's excess in summation, unobjected to by counsel for defendant, see supra, at 609and when the state court did so intending to follow the process approved in our Haslip and TXO decisions. B The Court finds Alabama's $2 million award not simply excessive, but grossly so, and therefore unconstitutional. 612 The decision leads us further into territory traditionally within the States' domain,[3] and commits the Court, now and again, to correct "misapplication of a properly stated rule of law." But cf. this Court's Rule 10 ("A petition for a writ of certiorari is rarely granted when the asserted error consists of erroneous factual findings or the misapplication of a properly stated rule of law.").[4] The Court is not well equipped 613 for this mission. Tellingly, the Court repeats that it brings to the task no "mathematical formula," ante, at 582, no "categorical approach," ibid., no "bright line," ante, at 585. It has only a vague concept of substantive due process, a "raised eyebrow" test, see ante, at 583, as its ultimate guide.[5] In contrast to habeas corpus review under 28 U.S. C. § 2254, the Court will work at this business alone. It will not be aided by the federal district courts and courts of appeals. It will be the only federal court policing the area. The Court's readiness to superintend state-court punitive damages awards is all the more puzzling in view of the Court's longstanding reluctance to countenance review, even by courts of appeals, of the size of verdicts returned by juries in federal district court proceedings. See generally 11 C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 2820 (2d ed. 1995). And the reexamination prominent in state courts [6] and in legislative arenas, see Appendix, 614 infra this page, serves to underscore why the Court's enterprise is undue. For the reasons stated, I dissent from this Court's disturbance of the judgment the Alabama Supreme Court has made. APPENDIX TO OPINION OF GINSBURG, J. State Legislative Activity Regarding Punitive Damages State legislatures have in the hopper or have enacted a variety of measures to curtail awards of punitive damages. At least one state legislature has prohibited punitive damages altogether, unless explicitly provided by statute. See N. H. Rev. Stat. Ann. § 507:16 (1994). We set out in this appendix some of the several controls enacted or under consideration in the States. The measures surveyed are: (1) caps on awards; (2) provisions for payment of sums to state agencies rather than to plaintiffs; and (3) mandatory bifurcated trials with separate proceedings for punitive damages determinations. 615 I. Caps on Punitive Damages Awards Colorado Colo. Rev. Stat. §§ 13-21-102(1)(a) and (3) (1987) (as a main rule, caps punitive damages at amount of actual damages). Connecticut Conn. Gen. Stat. § 52-240b (1995) (caps punitive damages at twice compensatory damages in products liability cases). Delaware H. R. 237, 138th Gen. Ass. (introduced May 17, 1995) (would cap punitive damages at greater of three times compensatory damages, or $250,000). Florida Fla. Stat. §§ 768.73(1)(a) and (b) (Supp. 1992) (in general, caps punitive damages at three times compensatory damages). Georgia Ga. Code Ann. § 51-12-5.1 (Supp. 1995) (caps punitive damages at $250,000 in some tort actions; prohibits multiple awards stemming from the same predicate conduct in products liability actions). Illinois H. 20, 89th Gen. Ass. 1995-1996 Reg. Sess. (enacted Mar. 9, 1995) (caps punitive damages at three times economic damages). Indiana H. 1741, 109th Reg. Sess. (enacted Apr. 26, 1995) (caps punitive damages at greater of three times compensatory damages, or $50,000). Kansas Kan. Stat. Ann. §§ 60-3701(e) and (f) (1994) (in general, caps punitive damages at lesser of defendant's annual gross income, or $5 million). Maryland S. 187, 1995 Leg. Sess. (introduced Jan. 27, 1995) (in general, would cap punitive damages at four times compensatory damages). Minnesota S. 489, 79th Leg. Sess., 1995 Reg. Sess. (introduced Feb. 16, 1995) (would require reasonable relationship between compensatory and punitive damages). Nevada Nev. Rev. Stat. § 42.005(1) (1993) (caps punitive damages at three times compensatory damages if compensatory damages equal $100,000 or more, and at $300,000 if the compensatory damages are less than $100,000). 616 New Jersey S. 1496, 206th Leg., 2d Ann. Sess. (1995) (caps punitive damages at greater of five times compensatory damages, or $350,000, in certain tort cases). North Dakota N. D. Cent. Code § 32-03.2-11(4) (Supp. 1995) (caps punitive damages at greater of two times compensatory damages, or $250,000). Oklahoma Okla. Stat., Tit. 23, §§ 9.1(B)(D) (Supp. 1996) (caps punitive damages at greater of $100,000, or actual damages, if jury finds defendant guilty of reckless disregard; and at greatest of $500,000, twice actual damages, or the benefit accruing to defendant from the injury-causing conduct, if jury finds that defendant has acted intentionally and maliciously). Texas S. 25, 74th Reg. Sess. (enacted Apr. 20, 1995) (caps punitive damages at twice economic damages, plus up to $750,000 additional noneconomic damages). Virginia Va. Code Ann. § 8.01-38.1 (1992) (caps punitive damages at $350,000). II. Allocation of Punitive Damages to State Agencies Arizona H. R. 2279, 42d Leg., 1st Reg. Sess. (introduced Jan. 12, 1995) (would allocate punitive damages to a victims' assistance fund, in specified circumstances). Florida Fla. Stat. §§ 768.73(2)(a)(b) (Supp. 1992) (allocates 35% of punitive damages to General Revenue Fund or Public Medical Assistance Trust Fund); see Gordon v. State, 585 So. 2d 1033, 1035-1038 (Fla. App. 1991), aff'd, 608 So. 2d 800 (Fla. 1992) (upholding provision against due process challenge). Georgia Ga. Code Ann. § 51-12-5.1(e)(2) (Supp. 1995) (allocates 75% of punitive damages, less a proportionate part of litigation costs, including counsel fees, to state treasury); see Mack Trucks, Inc. v. Conkle, 263 Ga. 539, 540-543, 436 S.E.2d 635, 637-639 (Ga. 1993) (upholding provision against constitutional challenge). 617 Illinois Ill. Comp. Stat., ch. 735, § 5/2-1207 (1994) (permits court to apportion punitive damages among plaintiff, plaintiff's attorney, and Illinois Department of Rehabilitation Services). Indiana H. 1741, 109th Reg. Sess. (enacted Apr. 26, 1995) (subject to statutory exceptions, allocates 75% of punitive damages to a compensation fund for violent crime victims). Iowa Iowa Code § 668A.1(2)(b) (1987) (in described circumstances, allocates 75% of punitive damages, after payment of costs and counsel fees, to a civil reparations trust fund); see Shepherd Components, Inc. v. Brice PetridesDonohue & Assoc., Inc., 473 N.W.2d 612, 619 (Iowa 1991) (upholding provision against constitutional challenge). Kansas Kan. Stat. Ann. § 60-3402(e) (1994) (allocates 50% of punitive damages in medical malpractice cases to state treasury). Missouri Mo. Rev. Stat. § 537.675 (1994) (allocates 50% of punitive damages, after payment of expenses and counsel fees, to Tort Victims' Compensation Fund). Montana H. 71, 54th Leg. Sess. (introduced Jan. 2, 1995) (would allocate 48% of punitive damages to state university system and 12% to school for the deaf and blind). New Jersey S. 291, 206th Leg., 1994-1995 1st Reg. Sess. (introduced Jan. 18, 1994); A. 148, 206th Leg., 1994 1995 1st Reg. Sess. (introduced Jan. 11, 1994) (would allocate 75% of punitive damages to New Jersey Health Care Trust Fund). New Mexico H. 1017, 42d Leg., 1st Sess. (introduced Feb. 16, 1995) (would allocate punitive damages to LowIncome Attorney Services Fund). Oregon S. 482, 68th Leg. Ass. (enacted July 19, 1995) (amending Ore. Rev. Stat. §§ 18.540 and 30.925, and repealing Ore. Rev. Stat. § 41.315) (allocates 60% of punitive damages to Criminal Injuries Compensation Account). 618 Utah Utah Code Ann. § 78-18-1(3) (1992) (allocates 50% of punitive damages in excess of $20,000 to state treasury). III. Mandatory Bifurcation of Liability and Punitive Damages Determinations California Cal. Civ. Code Ann. § 3295(d) (West Supp. 1995) (requires bifurcation, on application of defendant, of liability and damages phases of trials in which punitive damages are requested). Delaware H. R. 237, 138th Gen. Ass. (introduced May 17, 1995) (would require, at request of any party, a separate proceeding for determination of punitive damages). Georgia Ga. Code Ann. § 51-12-5.1(d) (Supp. 1995) (in all cases in which punitive damages are claimed, liability for punitive damages is tried first, then amount of punitive damages). Illinois H. 20, 89th Gen. Ass., 1995-1996 Reg. Sess. (enacted Mar. 9, 1995) (mandates, upon defendant's request, separate proceeding for determination of punitive damages). Kansas Kan. Stat. Ann. §§ 60-3701(a) and (b) (1994) (trier of fact determines defendant's liability for punitive damages, then court determines amount of such damages). Missouri Mo. Rev. Stat. §§ 510.263(1) and (3) (1994) (mandates bifurcated proceedings, on request of any party, for jury to determine first whether defendant is liable for punitive damages, then amount of punitive damages). Montana Mont. Code Ann. § 27-1221(7) (1995) (upon finding defendant liable for punitive damages, jury determines the amount in separate proceeding). Nevada Nev. Rev. Stat. § 42.005(3) (1993) (if jury determines that punitive damages will be awarded, jury then determines amount in separate proceeding). New Jersey N. J. Stat. Ann. §§ 2A:58C-5(b) and (d) (West 1987) (mandates separate proceedings for determination of compensatory and punitive damages). 619 North Dakota N. D. Cent. Code § 32-03.2-11(2) (Supp. 1995) (upon request of either party, trier of fact determines whether compensatory damages will be awarded before determining punitive damages liability and amount). Oklahoma Okla. Stat., Tit. 23, §§ 9.1(B)(D) (Supp. 1995-1996) (requires separate jury proceedings for punitive damages); S. 443, 45th Leg., 1st Reg. Sess. (introduced Jan. 31, 1995) (would require courts to strike requests for punitive damages before trial, unless plaintiff presents prima facie evidence at least 30 days before trial to sustain such damages; provide for bifurcated jury trial on request of defendant; and permit punitive damages only if compensatory damages are awarded). Virginia H. 1070, 1994-1995 Reg. Sess. (introduced Jan. 25, 1994) (would require separate proceedings in which court determines that punitive damages are appropriate and trier of fact determines amount of punitive damages).	The Court, I am convinced, unnecessarily and unwisely ventures into territory traditionally within the States' domain, and does so in the face of reform measures recently adopted or currently under consideration in legislative arenas The Alabama Supreme Court, in this case, endeavored to follow this Court's prior instructions; and, more recently, Alabama's highest court has installed further controls on awards of punitive damages (see infra, at 613-614, n 6) I would therefore leave the state court's judgment undisturbed, and resist unnecessary intrusion into an area dominantly of state concern I The respect due the Alabama Supreme Court requires that we strip from this case a false issue: No impermissible "extraterritoriality" infects the judgment before us; the excessiveness 608 of the award is the sole issue genuinely presented The Court ultimately so recognizes, see ante, at 573-574, but further clarification is in order Dr Gore's experience was not unprecedented among customers who bought BMW vehicles sold as flawless and brand-new In addition to his own encounter, Gore showed, through paint repair orders introduced at trial, that on 983 other occasions since 1983, BMW had shipped new vehicles to dealers without disclosing paint repairs costing at least $300, Tr 585-586; at least 14 of the repainted vehicles, the evidence also showed, were sold as new and undamaged to consumers in Alabama Sales nationwide, Alabama's Supreme Court said, were admissible "as to the issue of a `pattern and practice' of such acts" There was "no error," the court reiterated, "in the admission of the evidence that showed how pervasive the nondisclosure policy was and the intent behind BMW NA's adoption of it" That determination comports with this Court's expositions See Production ; see also Brief for Petitioner 22 (recognizing that similar acts, out-of-state, traditionally have been considered relevant "for the limited purpose of determining that the conduct before the [c]ourt was reprehensible because it was part of a pattern rather than an isolated incident") Alabama's highest court next declared that the "jury could not use the number of similar acts that a defendant has committed in other jurisdictions as a multiplier when determining the dollar amount of a punitive damages award Such evidence may not be considered in setting the size of the civil penalty, because neither the jury nor the trial court had evidence before it showing in which states the conduct was wrongful" 609 646 So 2d, (footnote omitted) Because the Alabama Supreme Court provided this clear statement of the State's law, the multiplier problem encountered in Gore's case is not likely to occur again Now, as a matter of Alabama law, it is plainly impermissible to assess punitive damages by multiplication based on out-of-state events not shown to be unlawful See, e g, Independent Life and Accident Ins No Alabama authority, it bears emphasisno statute, judicial decision, or trial judge instructionever countenanced the jury's multiplication of the $4,000 diminution in value estimated for each refinished car by the number of such cars (approximately 1,000) shown to have been sold nationwide The sole prompt to the jury to use nationwide sales as a multiplier came from Gore's lawyer during summation App 31, Tr 812-813 Notably, counsel for BMW failed to object to Gore's multiplication suggestion, even though BMW's counsel interrupted to make unrelated objections four other times during Gore's closing statement Tr 810 811, 854-855, 858, 870-871 Nor did BMW's counsel request a charge instructing the jury not to consider out-of-state sales in calculating the punitive damages award See Record 513-529 (listing all charges requested by counsel) Following the verdict, BMW's counsel challenged the admission of the paint repair orders, but not, alternately, the jury's apparent use of the orders in a multiplication exercise Curiously, during postverdict argument, BMW's counsel urged that if the repair orders were indeed admissible, then Gore would have a "full right" to suggest a multiplier-based disgorgement Tr 932 610 In brief, Gore's case is idiosyncratic The jury's improper multiplication, tardily featured by petitioner, is unlikely to recur in Alabama and does not call for error correction by this Court Because the jury apparently (and erroneously) had used acts in other States as a multiplier to arrive at a $4 million sum for punitive damages, the Alabama Supreme Court itself determined "`the maximum amount that a properly functioning jury could have awarded' " ) The per curiam opinion emphasized that in arriving at $2 million as "the amount of punitive damages to be awarded in this case, [the court did] not consider those acts that occurred in other jurisdictions" 646 So 2d, As this Court recognizes, the Alabama high court "properly eschewed reliance on BMW's out-of-state conduct and based its remitted award solely on conduct that occurred within Alabama" Ante, at 573-574 (citation omitted) In sum, the Alabama Supreme Court left standing the jury's decision that the facts warranted an award of punitive damagesa determination not contested in this Courtand the state court concluded that, considering only acts in Alabama, $2 million was "a constitutionally reasonable punitive damages award" II A Alabama's Supreme Court reports that it "thoroughly and painstakingly" reviewed the jury's award, according to principles set out in its own pathmarking decisions and in this Court's opinions in and Pacific Mut Life Ins 646 So 2d, at 6 The Alabama court said it gave weight to several factors, including BMW's deliberate ("reprehensible") presentation of refinished cars as new and undamaged, without disclosing that the value of those cars had been reduced by an estimated 611 10%,[1] the financial position of the defendant, and the costs of litigation These standards, we previously held, "impos[e] a sufficiently definite and meaningful constraint on the discretion of Alabama factfinders in awarding punitive damages" 499 U S, at 22; see also 509 U S, at n 28 Alabama's highest court could have displayed its labor pains more visibly,[2] but its judgment is nonetheless entitled to a presumption of legitimacy See Rowan v Runnels, 5 How 134, ("[T]his court will always feel itself bound to respect the decisions of the State courts, and from the time they are made will regard them as conclusive in all cases upon the construction of their own constitution and laws") We accept, of course, that Alabama's Supreme Court applied the State's own law correctly Under that law, the State's objectives"punishment and deterrence"guide punitive damages awards See Birmingham v Benson, 631 So 2d 902, Nor should we be quick to find a constitutional infirmity when the highest state court endeavored a corrective for one counsel's slip and the other's oversightcounsel for plaintiff's excess in summation, unobjected to by counsel for defendant, see at 609and when the state court did so intending to follow the process approved in our and decisions B The Court finds Alabama's $2 million award not simply excessive, but grossly so, and therefore unconstitutional 612 The decision leads us further into territory traditionally within the States' domain,[3] and commits the Court, now and again, to correct "misapplication of a properly stated rule of law" But cf this Court's Rule 10 ("A petition for a writ of certiorari is rarely granted when the asserted error consists of erroneous factual findings or the misapplication of a properly stated rule of law")[4] The Court is not well equipped 613 for this mission Tellingly, the Court repeats that it brings to the task no "mathematical formula," ante, at 582, no "categorical approach," no "bright line," ante, at 585 It has only a vague concept of substantive due process, a "raised eyebrow" test, see ante, at 583, as its ultimate guide[5] In contrast to habeas corpus review under 28 US C 2254, the Court will work at this business alone It will not be aided by the federal district courts and courts of appeals It will be the only federal court policing the area The Court's readiness to superintend state-court punitive damages awards is all the more puzzling in view of the Court's longstanding reluctance to countenance review, even by courts of appeals, of the size of verdicts returned by juries in federal district court proceedings See generally 11 C Wright, A Miller, & M Kane, Federal Practice and Procedure 2820 (2d ed 1995) And the reexamination prominent in state courts [6] and in legislative arenas, see Appendix, 614 infra this page, serves to underscore why the Court's enterprise is undue For the reasons stated, I dissent from this Court's disturbance of the judgment the Alabama Supreme Court has made APPENDIX TO OPINION OF GINSBURG, J State Legislative Activity Regarding Punitive Damages State legislatures have in the hopper or have enacted a variety of measures to curtail awards of punitive damages At least one state legislature has prohibited punitive damages altogether, unless explicitly provided by statute See N H Rev Stat Ann 507:16 We set out in this appendix some of the several controls enacted or under consideration in the States The measures surveyed are: (1) caps on awards; (2) provisions for payment of sums to state agencies rather than to plaintiffs; and (3) mandatory bifurcated trials with separate proceedings for punitive damages determinations 615 I Caps on Punitive Damages Awards Colorado Colo Rev Stat 13--102(1)(a) and (3) (1987) Connecticut Conn Gen Stat 52-240b (1995) (caps punitive damages at twice compensatory damages in products liability cases) Delaware H R 237, 138th Gen Ass (introduced May 17, 1995) (would cap punitive damages at greater of three times compensatory damages, or $250,000) Florida Fla Stat 76873(1)(a) and (b) Georgia Ga Code Ann 51-12-51 (Supp 1995) Illinois H 20, 89th Gen Ass 1995-1996 Reg Sess (enacted Mar 9, 1995) (caps punitive damages at three times economic damages) Indiana H 1741, 109th Reg Sess (enacted Apr 26, 1995) (caps punitive damages at greater of three times compensatory damages, or $50,000) Kansas Kan Stat Ann 60-3701(e) and (f) Maryland S 187, 1995 Leg Sess (introduced Jan 27, 1995) (in general, would cap punitive damages at four times compensatory damages) Minnesota S 489, 79th Leg Sess, 1995 Reg Sess (introduced Feb 16, 1995) (would require reasonable relationship between compensatory and punitive damages) Nevada Nev Rev Stat 42005(1) 616 New Jersey S 1496, 206th Leg, 2d Ann Sess (1995) (caps punitive damages at greater of five times compensatory damages, or $350,000, in certain tort cases) North Dakota N D Cent Code 32-032-11(4) (Supp 1995) (caps punitive damages at greater of two times compensatory damages, or $250,000) Oklahoma Okla Stat, Tit 23, 91(B)(D) (Supp 1996) (caps punitive damages at greater of $100,000, or actual damages, if jury finds defendant guilty of reckless disregard; and at greatest of $500,000, twice actual damages, or the benefit accruing to defendant from the injury-causing conduct, if jury finds that defendant has acted intentionally and maliciously) Texas S 25, 74th Reg Sess (enacted Apr 20, 1995) (caps punitive damages at twice economic damages, plus up to $750,000 additional noneconomic damages) Virginia Va Code Ann 801-381 II Allocation of Punitive Damages to State Agencies Arizona H R 2279, 42d Leg, 1st Reg Sess (introduced Jan 12, 1995) (would allocate punitive damages to a victims' assistance fund, in specified circumstances) Florida Fla Stat 76873(2)(a)(b) (allocates 35% of punitive damages to General Revenue Fund or Public Medical Assistance Trust Fund); see Gordon v State, 585 So 2d 1033, aff'd, 608 So 2d 800 Georgia Ga Code Ann 51-12-51(e)(2) (Supp 1995) ; see Mack Trucks, Inc v Conkle, 263 Ga 539, 436 SE2d 635, 617 Illinois Ill Comp Stat, ch 735, 5/2-1207 (permits court to apportion punitive damages among plaintiff, plaintiff's attorney, and Illinois Department of Rehabilitation Services) Indiana H 1741, 109th Reg Sess (enacted Apr 26, 1995) (subject to statutory exceptions, allocates 75% of punitive damages to a compensation fund for violent crime victims) Iowa Iowa Code 668A1(2)(b) (1987) (in described circumstances, allocates 75% of punitive damages, after payment of costs and counsel fees, to a civil reparations trust fund); see Shepherd Components, Inc v Brice PetridesDonohue & Assoc, Inc, 473 NW2d 612, Kansas Kan Stat Ann 60-3402(e) Missouri Mo Rev Stat 537675 Montana H 71, 54th Leg Sess (introduced Jan 2, 1995) (would allocate 48% of punitive damages to state university system and 12% to school for the deaf and blind) New Jersey S 291, 206th Leg, 1994-1995 1st Reg Sess ; A 148, 206th Leg, 1994 1995 1st Reg Sess (would allocate 75% of punitive damages to New Jersey Health Care Trust Fund) New Mexico H 1017, 42d Leg, 1st Sess (introduced Feb 16, 1995) (would allocate punitive damages to LowIncome Attorney Services Fund) Oregon S 482, 68th Leg Ass (enacted July 19, 1995) (amending Ore Rev Stat 18540 and 30925, and repealing Ore Rev Stat 41315) (allocates 60% of punitive damages to Criminal Injuries Compensation Account) 618 Utah Utah Code Ann 78-18-1(3) III Mandatory Bifurcation of Liability and Punitive Damages Determinations California Cal Civ Code Ann 3295(d) (West Supp 1995) (requires bifurcation, on application of defendant, of liability and damages phases of trials in which punitive damages are requested) Delaware H R 237, 138th Gen Ass (introduced May 17, 1995) (would require, at request of any party, a separate proceeding for determination of punitive damages) Georgia Ga Code Ann 51-12-51(d) (Supp 1995) Illinois H 20, 89th Gen Ass, 1995-1996 Reg Sess (enacted Mar 9, 1995) (mandates, upon defendant's request, separate proceeding for determination of punitive damages) Kansas Kan Stat Ann 60-3701(a) and (b) Missouri Mo Rev Stat 510263(1) and (3) Montana Mont Code Ann 27-12(7) (1995) (upon finding defendant liable for punitive damages, jury determines the amount in separate proceeding) Nevada Nev Rev Stat 42005(3) New Jersey N J Stat Ann 2A:58C-5(b) and (d) (West 1987) (mandates separate proceedings for determination of compensatory and punitive damages) North Dakota N D Cent Code 32-032-11(2) (Supp 1995) (upon request of either party, trier of fact determines whether compensatory damages will be awarded before determining punitive damages liability and amount) Oklahoma Okla Stat, Tit 23, 91(B)(D) (Supp 1995-1996) (requires separate jury proceedings for punitive damages); S 443, 45th Leg, 1st Reg Sess (introduced Jan 31, 1995) (would require courts to strike requests for punitive damages before trial, unless plaintiff presents prima facie evidence at least 30 days before trial to sustain such damages; provide for bifurcated jury trial on request of defendant; and permit punitive damages only if compensatory damages are awarded) Virginia H 1070, 1994-1995 Reg Sess (would require separate proceedings in which court determines that punitive damages are appropriate and trier of fact determines amount of punitive damages)	1,984
Justice O'Connor	majority	false	Thompson v. Western States Medical Center	2002-04-29	null	https://www.courtlistener.com/opinion/118499/thompson-v-western-states-medical-center/	https://www.courtlistener.com/api/rest/v3/clusters/118499/	2,002	2001-041	2	5	4	Section 127(a) of the Food and Drug Administration Modernization Act of 1997 (FDAMA or Act), 111 Stat. 2328, 21 U.S. C. ง 353a, exempts "compounded drugs" from the Food and Drug Administration's standard drug approval requirements as long as the providers of those drugs abide by several restrictions, including that they refrain from advertising or promoting particular compounded drugs. Respondents, a group of licensed pharmacies that specialize in compounding drugs, sought to enjoin enforcement of the subsections of the Act dealing with advertising and solicitation, arguing that those provisions violate the First Amendment's free speech guarantee. The District Court agreed with respondents and granted their motion for summary judgment, holding that the provisions do not meet the test for acceptable government regulation of commercial speech set forth in Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of N. Y., 447 U.S. 557, 566 (1980). The court invalidated the relevant provisions, severing them from the rest of ง 127(a). The Court of Appeals for the Ninth Circuit affirmed in part and reversed in part, agreeing that the provisions regarding advertisement and promotion are unconstitutional but finding them not to be severable from the rest of ง 127(a). Petitioners challenged only the Court of Appeals' constitutional holding in their petition for certiorari, and respondents did not file a cross-petition. We therefore address only the constitutional question, having no occasion to review the Court of Appeals' severability determination. We conclude, as did the courts below, that ง 127(a)'s provisions regarding advertisement and promotion amount to unconstitutional restrictions on commercial speech, and we therefore affirm. I Drug compounding is a process by which a pharmacist or doctor combines, mixes, or alters ingredients to create 361 a medication tailored to the needs of an individual patient. Compounding is typically used to prepare medications that are not commercially available, such as medication for a patient who is allergic to an ingredient in a mass-produced product. It is a traditional component of the practice of pharmacy, see J. Thompson, A Practical Guide to Contemporary Pharmacy Practice 11.3 (1998), and is taught as part of the standard curriculum at most pharmacy schools, see American Council on Pharmaceutical Education, Accreditation Standards and Guidelines for the Professional Program in Pharmacy Leading to the Doctor of Pharmacy Degree, Standard 10(a) (adopted June 14, 1997). Many States specifically regulate compounding practices as part of their regulation of pharmacies. See, e. g., Cal. Code Regs., tit. 16, งง 1716.2, 1751 (2002); Ind. Admin. Code, tit. 856, งง 1-30-8, 1-30-18, 1-28-8 (2001); N. H. Code Admin. Rules Ann. Pharmacy, pts. PH 404, PH 702.01 (2002); 22 Tex. Admin. Code ง 291.36 (2002). Some require all licensed pharmacies to offer compounding services. See, e. g., 49 Pa. Code ง 27.18(p)(2) (2002); W. Va. Code St. Rules, tit. 15, ง 19.4 (2002). Pharmacists may provide compounded drugs to patients only upon receipt of a valid prescription from a doctor or other medical practitioner licensed to prescribe medication. See, e. g., Okla. Admin. Code งง 535:15-10-3, 535:15โ 10-9(d) (2001); Colo. State Board of Pharmacy Rule 3.02.10 (2001). The Federal Food, Drug, and Cosmetic Act of 1938 (FDCA), 21 U.S. C. งง 301-397, regulates drug manufacturing, marketing, and distribution. Section 505(a) of the FDCA, 52 Stat. 1052, as amended, 76 Stat. 784, provides that "[n]o person shall introduce or deliver for introduction into interstate commerce any new drug, unless an approval of an application filed [with the Food and Drug Administration] is effective with respect to such drug." 21 U.S. C. ง 355(a). "[N]ew drug" is defined by ง 201(p)(1) of the FDCA, 52 Stat. 1041, as amended, 76 Stat. 781, as "[a]ny drug . . . not 362 generally recognized, among experts qualified by scientific training and experience to evaluate the safety and effectiveness of drugs, as safe and effective for use under the conditions prescribed, recommended, or suggested in the labeling thereof." 21 U.S. C. ง 321(p). The FDCA invests the Food and Drug Administration (FDA) with the power to enforce its requirements. ง 371(a). For approximately the first 50 years after the enactment of the FDCA, the FDA generally left regulation of compounding to the States. Pharmacists continued to provide patients with compounded drugs without applying for FDA approval of those drugs. The FDA eventually became concerned, however, that some pharmacists were manufacturing and selling drugs under the guise of compounding, thereby avoiding the FDCA's new drug requirements. In 1992, in response to this concern, the FDA issued a Compliance Policy Guide, which announced that the "FDA may, in the exercise of its enforcement discretion, initiate federal enforcement actions . . . when the scope and nature of a pharmacy's activities raises the kinds of concerns normally associated with a manufacturer and . . . results in significant violations of the new drug, adulteration, or misbranding provisions of the Act." Compliance Policy Guide 7132.16 (hereinafter Guide), App. to Pet. for Cert. 76a. The Guide explained that the "FDA recognizes that pharmacists traditionally have extemporaneously compounded and manipulated reasonable quantities of drugs upon receipt of a valid prescription for an individually identified patient from a licensed practitioner," and that such activity was not the subject of the Guide. Id., at 71a. The Guide said, however, "that while retail pharmacies . . . are exempted from certain requirements of the [FDCA], they are not the subject of any general exemption from the new drug, adulteration, or misbranding provisions" of the FDCA. Id., at 72a. It stated that the "FDA believes that an increasing number of establishments with retail pharmacy licenses are engaged in 363 manufacturing, distributing, and promoting unapproved new drugs for human use in a manner that is clearly outside the bounds of traditional pharmacy practice and that constitute violations of the [FDCA]." Ibid. The Guide expressed concern that drug products "manufactured and distributed in commercial amounts without [the] FDA's prior approval" could harm the public health. Id., at 73a. In light of these considerations, the Guide announced that it was FDA policy to permit pharmacists to compound drugs after receipt of a valid prescription for an individual patient or to compound drugs in "very limited quantities" before receipt of a valid prescription if they could document a history of receiving valid prescriptions "generated solely within an established professional practitioner-patient-pharmacy relationship" and if they maintained the prescription on file as required by state law. Id., at 73aโ75a. Compounding in such circumstances was permitted as long as the pharmacy's activities did not raise "the kinds of concerns normally associated with a manufacturer." Id., at 76a. The Guide listed nine examples of activities that the FDA believed raised such concerns and that would therefore be considered by the agency in determining whether to bring an enforcement action. These activities included: "[s]oliciting business (e. g., promoting, advertising, or using salespersons) to compound specific drug products, product classes, or therapeutic classes of drug products"; "[c]ompounding, regularly, or in inordinate amounts, drug products that are commercially available . . . and that are essentially generic copies of commercially available, FDAโapproved drug products"; using commercial scale manufacturing or testing equipment to compound drugs; offering compounded drugs at wholesale; and "[d]istributing inordinate amounts of compounded products out of state." Id., at 76aโ77a. The Guide further warned that pharmacies could not dispense drugs to third parties for resale to individual patients without losing their status as retail entities. Id., at 75a. 364 Congress turned portions of this policy into law when it enacted the FDAMA in 1997. The FDAMA, which amends the FDCA, exempts compounded drugs from the FDCA's "new drug" requirements and other requirements provided the drugs satisfy a number of restrictions. First, they must be compounded by a licensed pharmacist or physician in response to a valid prescription for an identified individual patient, or, if prepared before the receipt of such a prescription, they must be made only in "limited quantities" and in response to a history of the licensed pharmacist's or physician's receipt of valid prescription orders for that drug product within an established relationship between the pharmacist, the patient, and the prescriber. 21 U.S. C. ง 353a(a). Second, the compounded drug must be made from approved ingredients that meet certain manufacturing and safety standards, งง 353a(b)(1)(A)โ(B), and the compounded drug may not appear on an FDA list of drug products that have been withdrawn or removed from the market because they were found to be unsafe or ineffective, ง 353a(b)(1)(C). Third, the pharmacist or physician compounding the drug may not "compound regularly or in inordinate amounts (as defined by the Secretary) any drug products that are essentially copies of a commercially available drug product." ง 353a(b)(1)(D). Fourth, the drug product must not be identified by the FDA as a drug product that presents demonstrable difficulties for compounding in terms of safety or effectiveness. ง 353a(b)(3)(A). Fifth, in States that have not entered into a "memorandum of understanding" with the FDA addressing the distribution of "inordinate amounts" of compounded drugs in interstate commerce, the pharmacy, pharmacist, or physician compounding the drug may not distribute compounded drugs out of state in quantities exceeding five percent of that entity's total prescription orders. ง 353a(b)(3)(B). Finally, and most relevant for this litigation, the prescription must be "unsolicited," ง 353a(a), and the pharmacy, licensed pharmacist, or licensed physician 365 compounding the drug may "not advertise or promote the compounding of any particular drug, class of drug, or type of drug," ง 353a(c). The pharmacy, licensed pharmacist, or licensed physician may, however, "advertise and promote the compounding service." Ibid. Respondents are a group of licensed pharmacies that specialize in drug compounding. They have prepared promotional materials that they distribute by mail and at medical conferences to inform patients and physicians of the use and effectiveness of specific compounded drugs. Fearing that they would be prosecuted under the FDAMA if they continued to distribute those materials, respondents filed a complaint in the United States District Court for the District of Nevada, arguing that the Act's requirement that they refrain from advertising and promoting their products if they wish to continue compounding violates the Free Speech Clause of the First Amendment. Specifically, they challenged the requirement that prescriptions for compounded drugs be "unsolicited," 21 U.S. C. ง 353a(a), and the requirement that pharmacists "not advertise or promote the compounding of any particular drug, class of drug, or type of drug," ง 353a(c). The District Court granted summary judgment to respondents, finding that the FDAMA's speech-related provisions constitute unconstitutional restrictions on commercial speech under Central Hudson, 447 U. S., at 566, and that their enforcement should therefore be enjoined. Western States Medical Center v. Shalala, 69 F. Supp. 2d 1288 (Nev. 1999). The District Court, however, found those provisions to be severable from the rest of ง 127(a) of the FDAMA, 21 U.S. C. ง 353a, and so left the Act's other compounding requirements intact. The Government appealed both the holding that the speech-related provisions were unconstitutional and the holding that those provisions were severable from the rest of ง 127(a). The Court of Appeals for the Ninth Circuit affirmed in part and reversed in part. Western States Med- 366 ical Center v. Shalala, 238 F.3d 1090 (2001). The Court of Appeals agreed that the FDAMA's advertisement and solicitation restrictions fail Central Hudson `s test for permissible regulation of commercial speech, finding that the Government had not demonstrated that the speech restrictions would directly advance its interests or that alternatives less restrictive of speech were unavailable. The Court of Appeals disagreed, however, that the speech-related restrictions were severable from the rest of ง 127(a), 21 U.S. C. ง 353a, explaining that the FDAMA's legislative history demonstrated that Congress intended to exempt compounding from the FDCA's requirements only in return for a prohibition on promotion of specific compounded drugs. Accordingly, the Court of Appeals invalidated ง 127(a) in its entirety. We granted certiorari, 534 U.S. 992 (2001), to consider whether the FDAMA's prohibitions on soliciting prescriptions for, and advertising, compounded drugs violate the First Amendment. Because neither party petitioned for certiorari on the severability issue, we have no occasion to review that portion of the Court of Appeals' decision. Likewise, the provisions of the FDAMA outside ง 127(a), which are unrelated to drug compounding, are not an issue here and so remain unaffected. II The parties agree that the advertising and soliciting prohibited by the FDAMA constitute commercial speech. In Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976), the first case in which we explicitly held that commercial speech receives First Amendment protection, we explained the reasons for this protection: "It is a matter of public interest that [economic] decisions, in the aggregate, be intelligent and well-informed. To this end, the free flow of commercial information is indispensable." Id., at 765. Indeed, we recognized that a "particular consumer's interest in the free flow of commercial information . . . may be as keen, if not keener by far, than 367 his interest in the day's most urgent political debate." Id., at 763. We have further emphasized: "The commercial marketplace, like other spheres of our social and cultural life, provides a forum where ideas and information flourish. Some of the ideas and information are vital, some of slight worth. But the general rule is that the speaker and the audience, not the government, assess the value of the information presented. Thus, even a communication that does no more than propose a commercial transaction is entitled to the coverage of the First Amendment." Edenfield v. Fane, 507 U.S. 761, 767 (1993). Although commercial speech is protected by the First Amendment, not all regulation of such speech is unconstitutional. See Virginia Bd. of Pharmacy, supra, at 770. In Central Hudson, supra, we articulated a test for determining whether a particular commercial speech regulation is constitutionally permissible. Under that test we ask as a threshold matter whether the commercial speech concerns unlawful activity or is misleading. If so, then the speech is not protected by the First Amendment. If the speech concerns lawful activity and is not misleading, however, we next ask "whether the asserted governmental interest is substantial." Id., at 566. If it is, then we "determine whether the regulation directly advances the governmental interest asserted," and, finally, "whether it is not more extensive than is necessary to serve that interest." Ibid. Each of these latter three inquiries must be answered in the affirmative for the regulation to be found constitutional. Neither party has challenged the appropriateness of applying the Central Hudson framework to the speech-related provisions at issue here. Although several Members of the Court have expressed doubts about the Central Hudson analysis and whether it should apply in particular cases, see, e. g., Greater New Orleans Broadcasting Assn., Inc. v. 368 United States, 527 U.S. 173, 197 (1999) (Thomas, J., concurring in judgment); 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 501, 510-514 (1996) (opinion of Stevens, J., joined by Kennedy and Ginsburg, JJ.); id., at 517 (Scalia, J., concurring in part and concurring in judgment); id., at 518 (Thomas, J., concurring in part and concurring in judgment), there is no need in this case to break new ground. "`Central Hudson, as applied in our more recent commercial speech cases, provides an adequate basis for decision.' " Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 554-555 (2001) (quoting Greater New Orleans, supra, at 184). III The Government does not attempt to defend the FDAMA's speech-related provisions under the first prong of the Central Hudson test; i. e., it does not argue that the prohibited advertisements would be about unlawful activity or would be misleading. Instead, the Government argues that the FDAMA satisfies the remaining three prongs of the Central Hudson test. The Government asserts that three substantial interests underlie the FDAMA. The first is an interest in "preserv[ing] the effectiveness and integrity of the FDCA's new drug approval process and the protection of the public health that it provides." Brief for Petitioners 19. The second is an interest in "preserv[ing] the availability of compounded drugs for those individual patients who, for particularized medical reasons, cannot use commercially available products that have been approved by the FDA." Id., at 19-20. Finally, the Government argues that "[a]chieving the proper balance between those two independently compelling but competing interests is itself a substantial governmental interest." Id., at 20. Explaining these interests, the Government argues that the FDCA's new drug approval requirements are critical to the public health and safety. It claims that the FDA's 369 experience with drug regulation demonstrates that proof of the safety and effectiveness of a new drug needs to be established by rigorous, scientifically valid clinical studies because impressions of individual doctors, who cannot themselves compile sufficient safety data, cannot be relied upon. The Government also argues that a premarket approval process, under which manufacturers are required to put their proposed drugs through tests of safety and effectiveness in order to obtain FDA approval to market the drugs, is the best way to guarantee drug safety and effectiveness. While it praises the FDCA's new drug approval process, the Government also acknowledges that "because obtaining FDA approval for a new drug is a costly process, requiring FDA approval of all drug products compounded by pharmacies for the particular needs of an individual patient would, as a practical matter, eliminate the practice of compounding, and thereby eliminate availability of compounded drugs for those patients who have no alternative treatment." Id., at 26. The Government argues that eliminating the practice of compounding drugs for individual patients would be undesirable because compounding is sometimes critical to the care of patients with drug allergies, patients who cannot tolerate particular drug delivery systems, and patients requiring special drug dosages. Preserving the effectiveness and integrity of the FDCA's new drug approval process is clearly an important governmental interest, and the Government has every reason to want as many drugs as possible to be subject to that approval process. The Government also has an important interest, however, in permitting the continuation of the practice of compounding so that patients with particular needs may obtain medications suited to those needs. And it would not make sense to require compounded drugs created to meet the unique needs of individual patients to undergo the testing required for the new drug approval process. Pharmacists do not make enough money from 370 small-scale compounding to make safety and efficacy testing of their compounded drugs economically feasible, so requiring such testing would force pharmacists to stop providing compounded drugs. Given this, the Government needs to be able to draw a line between small-scale compounding and large-scale drug manufacturing. That line must distinguish compounded drugs produced on such a small scale that they could not undergo safety and efficacy testing from drugs produced and sold on a large enough scale that they could undergo such testing and therefore must do so. The Government argues that the FDAMA's speech-related provisions provide just such a line, i. e., that, in the terms of Central Hudson, they "directly advanc[e] the governmental interest[s] asserted." 447 U.S., at 566. Those provisions use advertising as the trigger for requiring FDA approvalโessentially, as long as pharmacists do not advertise particular compounded drugs, they may sell compounded drugs without first undergoing safety and efficacy testing and obtaining FDA approval. If they advertise their compounded drugs, however, FDA approval is required. The Government explains that traditional (or, in its view, desirable) compounding responds to a physician's prescription and an individual patient's particular medical situation, and that "[a]dvertising the particular products created in the provision of [such] service (as opposed to advertising the compounding service itself) is not necessary to . . . this type of responsive and customized service." Brief for Petitioners 34. The Government argues that advertising particular products is useful in a broad market but is not useful when particular products are designed in response to an individual's "often unique need[s]." Ibid. The Government contends that, because of this, advertising is not typically associated with compounding for particular individuals. In contrast it is typically associated, the Government claims, with large-scale production of a drug for a substantial market. The Government argues that advertising, 371 therefore, is "a fair proxy for actual or intended largescale manufacturing," and that Congress' decision to limit the FDAMA's compounding exemption to pharmacies that do not engage in promotional activity was "rationally calculated" to avoid creating "`a loophole that would allow unregulated drug manufacturing to occur under the guise of pharmacy compounding.' " Id., at 35 (quoting 143 Cong. Rec. S9839 (Sept. 24, 1997) (statement of Sen. Kennedy)). The Government seems to believe that without advertising it would not be possible to market a drug on a large enough scale to make safety and efficacy testing economically feasible. The Government thus believes that conditioning an exemption from the FDA approval process on refraining from advertising is an ideal way to permit compounding and yet also guarantee that compounding is not conducted on such a scale as to undermine the FDA approval process. Assuming it is true that drugs cannot be marketed on a large scale without advertising, the FDAMA's prohibition on advertising compounded drugs might indeed "directly advanc[e]" the Government's interests. Central Hudson, 447 U. S., at 566. Even assuming that it does, however, the Government has failed to demonstrate that the speech restrictions are "not more extensive than is necessary to serve [those] interest[s]." Ibid. In previous cases addressing this final prong of the Central Hudson test, we have made clear that if the Government could achieve its interests in a manner that does not restrict speech, or that restricts less speech, the Government must do so. In Rubin v. Coors Brewing Co., 514 U.S. 476 (1995), for example, we found a law prohibiting beer labels from displaying alcohol content to be unconstitutional in part because of the availability of alternatives "such as directly limiting the alcohol content of beers, prohibiting marketing efforts emphasizing high alcohol strength . . . , or limiting the labeling ban only to malt liquors." Id., at 490-491. The fact that "all of [these alternatives] could advance the Government's asserted interest 372 in a manner less intrusive to . . . First Amendment rights" indicated that the law was "more extensive than necessary." Id., at 491. See also 44 Liquormart, Inc. v. Rhode Island, 517 U. S., at 507 (plurality opinion) (striking down a prohibition on advertising the price of alcoholic beverages in part because "alternative forms of regulation that would not involve any restriction on speech would be more likely to achieve the State's goal of promoting temperance"). Several non-speech-related means of drawing a line between compounding and large-scale manufacturing might be possible here. First, it seems that the Government could use the very factors the FDA relied on to distinguish compounding from manufacturing in its 1992 Guide. For example, the Government could ban the use of "commercial scale manufacturing or testing equipment for compounding drug products." Guide, App. to Pet. for Cert. 76a. It could prohibit pharmacists from compounding more drugs in anticipation of receiving prescriptions than in response to prescriptions already received. See ibid. It could prohibit pharmacists from "[o]ffering compounded drug products at wholesale to other state licensed persons or commercial entities for resale." Id., at 77a. Alternately, it could limit the amount of compounded drugs, either by volume or by numbers of prescriptions, that a given pharmacist or pharmacy sells out of state. See ibid. Another possibility not suggested by the Guide would be capping the amount of any particular compounded drug, either by drug volume, number of prescriptions, gross revenue, or profit that a pharmacist or pharmacy may make or sell in a given period of time. It might even be sufficient to rely solely on the non-speechrelated provisions of the FDAMA, such as the requirement that compounding only be conducted in response to a prescription or a history of receiving a prescription, 21 U.S. C. ง 353a(a), and the limitation on the percentage of a pharmacy's total sales that out-of-state sales of compounded drugs may represent, ง 353a(b)(3)(B). 373 The Government has not offered any reason why these possibilities, alone or in combination, would be insufficient to prevent compounding from occurring on such a scale as to undermine the new drug approval process. Indeed, there is no hint that the Government even considered these or any other alternatives. Nowhere in the legislative history of the FDAMA or petitioners' briefs is there any explanation of why the Government believed forbidding advertising was a necessary as opposed to merely convenient means of achieving its interests. Yet "[i]t is well established that `the party seeking to uphold a restriction on commercial speech carries the burden of justifying it.' " Edenfield v. Fane, 507 U. S., at 770 (quoting Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 71, n. 20 (1983)). The Government simply has not provided sufficient justification here. If the First Amendment means anything, it means that regulating speech must be a lastโnot firstโresort. Yet here it seems to have been the first strategy the Government thought to try. The dissent describes another governmental interestโan interest in prohibiting the sale of compounded drugs to "patients who may not clearly need them," post, at 379 (opinion of Breyer, J.)โand argues that "Congress could . . . conclude that the advertising restrictions `directly advance' " that interest, post, at 384. Nowhere in its briefs, however, does the Government argue that this interest motivated the advertising ban. Although, for the reasons given by the dissent, Congress conceivably could have enacted the advertising ban to advance this interest, we have generally only sustained statutes on the basis of hypothesized justifications when reviewing statutes merely to determine whether they are rational. See L. Tribe, American Constitutional Law 1444-1446 (2d ed. 1988) (describing the "rational basis" or "conceivable basis" test); see also, e. g., Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 466 (1981) (sustaining a milk packaging regulation under the "rational basis" test 374 because "the Minnesota Legislature could rationally have decided that [the regulation] might foster greater use of environmentally desirable alternatives" (emphasis deleted)). The Central Hudson test is significantly stricter than the rational basis test, however, requiring the Government not only to identify specifically "a substantial interest to be achieved by [the] restrictio[n] on commercial speech," 447 U.S., at 564, but also to prove that the regulation "directly advances" that interest and is "not more extensive than is necessary to serve that interest," id., at 566. The Government has not met any of these requirements with regard to the interest the dissent describes. Even if the Government had argued that the FDAMA's speech-related restrictions were motivated by a fear that advertising compounded drugs would put people who do not need such drugs at risk by causing them to convince their doctors to prescribe the drugs anyway, that fear would fail to justify the restrictions. Aside from the fact that this concern rests on the questionable assumption that doctors would prescribe unnecessary medications (an assumption the dissent is willing to make based on one magazine article and one survey, post, at 383-384, neither of which was relied upon by the Government), this concern amounts to a fear that people would make bad decisions if given truthful information about compounded drugs. See supra, at 368 (explaining that the Government does not claim the advertisements forbidden by the FDAMA would be false or misleading). We have previously rejected the notion that the Government has an interest in preventing the dissemination of truthful commercial information in order to prevent members of the public from making bad decisions with the information. In Virginia Bd. of Pharmacy, the State feared that if people received price advertising from pharmacists, they would "choose the low-cost, low-quality service and drive the `professional' pharmacist out of business" and would "destroy the pharmacist-customer relationship" by going from one 375 pharmacist to another. We found these fears insufficient to justify a ban on such advertising. 425 U.S., at 769. We explained: "There is, of course, an alternative to this highly paternalistic approach. That alternative is to assume that this information is not in itself harmful, that people will perceive their own best interests if only they are well enough informed, and that the best means to that end is to open the channels of communication rather than to close them. . . . But the choice among these alternative approaches is not ours to make or the Virginia General Assembly's. It is precisely this kind of choice, between the dangers of suppressing information, and the dangers of its misuse if it is freely available, that the First Amendment makes for us. Virginia is free to require whatever professional standards it wishes of its pharmacists; it may subsidize them or protect them from competition in other ways. . . . But it may not do so by keeping the public in ignorance of the entirely lawful terms that competing pharmacists are offering." Id., at 770 (citation omitted). See also 44 Liquormart, Inc. v. Rhode Island, 517 U. S., at 503 ("[B]ans against truthful, nonmisleading commercial speech . . . usually rest solely on the offensive assumption that the public will respond `irrationally' to the truth. . . . The First Amendment directs us to be especially skeptical of regulations that seek to keep people in the dark for what the government perceives to be their own good" (citation omitted)). Even if the Government had asserted an interest in preventing people who do not need compounded drugs from obtaining those drugs, the statute does not directly advance that interest. The dissent claims that the Government "must exclude from the area of permitted drug sales . . . those compounded drugs sought by patients who may not 376 clearly need them." Post, at 379. Yet the statute does not directly forbid such sales. It instead restricts advertising, of course not just to those who do not need compounded drugs, but also to individuals who do need compounded drugs and their doctors. Although the advertising ban may reduce the demand for compounded drugs from those who do not need the drugs, it does nothing to prevent such individuals from obtaining compounded drugs other than requiring prescriptions. But if it is appropriate for the statute to rely on doctors to refrain from prescribing compounded drugs to patients who do not need them, it is not clear why it would not also be appropriate to rely on doctors to refrain from prescribing compounded drugs to patients who do not need them in a world where advertising was permitted. The dissent may also be suggesting that the Government has an interest in banning the advertising of compounded drugs because patients who see such advertisements will be confused about the drugs' risks. See post, at 387 ("[The Government] fears the systematic effect . . . of advertisements that will not fully explain the complicated risks at issue"). This argument is precluded, however, by the fact that the Government does not argue that the advertisements are misleading. Even if the Government did argue that it had an interest in preventing misleading advertisements, this interest could be satisfied by the far less restrictive alternative of requiring each compounded drug to be labeled with a warning that the drug had not undergone FDA testing and that its risks were unknown. If the Government's failure to justify its decision to regulate speech were not enough to convince us that the FDAMA's advertising provisions were unconstitutional, the amount of beneficial speech prohibited by the FDAMA would be. Forbidding the advertisement of compounded drugs would affect pharmacists other than those interested in producing drugs on a large scale. It would prevent pharmacists *377 with no interest in mass-producing medications, but who serve clienteles with special medical needs, from telling the doctors treating those clients about the alternative drugs available through compounding. For example, a pharmacist serving a children's hospital where many patients are unable to swallow pills would be prevented from telling the children's doctors about a new development in compounding that allowed a drug that was previously available only in pill form to be administered another way. Forbidding advertising of particular compounded drugs would also prohibit a pharmacist from posting a notice informing customers that if their children refuse to take medications because of the taste, the pharmacist could change the flavor, and giving examples of medications where flavoring is possible. The fact that the FDAMA would prohibit such seemingly useful speech even though doing so does not appear to directly further any asserted governmental objective confirms our belief that the prohibition is unconstitutional. Accordingly, we affirm the Court of Appeals' judgment that the speech-related provisions of FDAMA ง 127(a) are unconstitutional. So ordered.	Section 127(a) of the Food and Drug Administration Modernization Act of 1997 (FDAMA or Act), 21 U.S. C. ง 353a, exempts "compounded drugs" from the Food and Drug Administration's standard drug approval requirements as long as the providers of those drugs abide by several restrictions, including that they refrain from advertising or promoting particular compounded drugs. Respondents, a group of licensed pharmacies that specialize in compounding drugs, sought to enjoin enforcement of the subsections of the Act dealing with advertising and solicitation, arguing that those provisions violate the First Amendment's free speech guarantee. The District Court agreed with respondents and granted their motion for summary judgment, holding that the provisions do not meet the test for acceptable government regulation of commercial speech set forth in Central Gas & Elec. The court invalidated the relevant provisions, severing them from the rest of ง 127(a). The Court of Appeals for the Ninth Circuit affirmed in part and reversed in part, agreeing that the provisions regarding advertisement and promotion are unconstitutional but finding them not to be severable from the rest of ง 127(a). Petitioners challenged only the Court of Appeals' constitutional holding in their petition for certiorari, and respondents did not file a cross-petition. We therefore address only the constitutional question, having no occasion to review the Court of Appeals' severability determination. We conclude, as did the courts below, that ง 127(a)'s provisions regarding advertisement and promotion amount to unconstitutional restrictions on commercial speech, and we therefore affirm. I Drug compounding is a process by which a pharmacist or doctor combines, mixes, or alters ingredients to create 361 a medication tailored to the needs of an individual patient. Compounding is typically used to prepare medications that are not commercially available, such as medication for a patient who is allergic to an ingredient in a mass-produced product. It is a traditional component of the practice of pharmacy, see J. Thompson, A Practical Guide to Contemporary Practice 11.3 (1998), and is taught as part of the standard curriculum at most pharmacy schools, see American Council on Pharmaceutical Education, Accreditation Standards and Guidelines for the Professional Program in Leading to the Doctor of Degree, Standard 10(a) (adopted June 14, 1997). Many States specifically regulate compounding practices as part of their regulation of pharmacies. See, e. g., Cal. Code Regs., tit. 16, งง 1716.2, 1751 (2002); Ind. Admin. Code, tit. 856, งง 1-30-8, 1-30-18, 1-28-8 ; N. H. Code Admin. Rules Ann. pts. PH 404, PH 702.01 (2002); 22 Tex. Admin. Code ง 291.36 (2002). Some require all licensed pharmacies to offer compounding services. See, e. g., 49 Pa. Code ง 27.18(p)(2) (2002); W. Va. Code St. Rules, tit. 15, ง 19.4 (2002). Pharmacists may provide compounded drugs to patients only upon receipt of a valid prescription from a doctor or other medical practitioner licensed to prescribe medication. See, e. g., Okla. Admin. Code งง 535:15-10-3, 535:15โ 10-9(d) ; Colo. State Board of Rule 3.02.10 The Federal Food, Drug, and Cosmetic Act of 1938 (FDCA), 21 U.S. C. งง 301-397, regulates drug manufacturing, marketing, and distribution. Section 505(a) of the FDCA, as amended, provides that "[n]o person shall introduce or deliver for introduction into interstate commerce any new drug, unless an approval of an application filed [with the Food and Drug Administration] is effective with respect to such drug." 21 U.S. C. ง 355(a). "[N]ew drug" is defined by ง 201(p)(1) of the FDCA, as amended, as "[a]ny drug not 362 generally recognized, among experts qualified by scientific training and experience to evaluate the safety and effectiveness of drugs, as safe and effective for use under the conditions prescribed, recommended, or suggested in the labeling thereof." 21 U.S. C. ง 321(p). The FDCA invests the Food and Drug Administration (FDA) with the power to enforce its requirements. ง 371(a). For approximately the first 50 years after the enactment of the FDCA, the FDA generally left regulation of compounding to the States. Pharmacists continued to provide patients with compounded drugs without applying for FDA approval of those drugs. The FDA eventually became concerned, however, that some pharmacists were manufacturing and selling drugs under the guise of compounding, thereby avoiding the FDCA's new drug requirements. In 1992, in response to this concern, the FDA issued a Compliance Policy Guide, which announced that the "FDA may, in the exercise of its enforcement discretion, initiate federal enforcement actions when the scope and nature of a pharmacy's activities raises the kinds of concerns normally associated with a manufacturer and results in significant violations of the new drug, adulteration, or misbranding provisions of the Act." Compliance Policy Guide 7132.16 (hereinafter Guide), App. to Pet. for Cert. 76a. The Guide explained that the "FDA recognizes that pharmacists traditionally have extemporaneously compounded and manipulated reasonable quantities of drugs upon receipt of a valid prescription for an individually identified patient from a licensed practitioner," and that such activity was not the subject of the Guide. at 71a. The Guide said, however, "that while retail pharmacies are exempted from certain requirements of the [FDCA], they are not the subject of any general exemption from the new drug, adulteration, or misbranding provisions" of the FDCA. at 72a. It stated that the "FDA believes that an increasing number of establishments with retail pharmacy licenses are engaged in 363 manufacturing, distributing, and promoting unapproved new drugs for human use in a manner that is clearly outside the bounds of traditional pharmacy practice and that constitute violations of the [FDCA]." The Guide expressed concern that drug products "manufactured and distributed in commercial amounts without [the] FDA's prior approval" could harm the public health. at 73a. In light of these considerations, the Guide announced that it was FDA policy to permit pharmacists to compound drugs after receipt of a valid prescription for an individual patient or to compound drugs in "very limited quantities" before receipt of a valid prescription if they could document a history of receiving valid prescriptions "generated solely within an established professional practitioner-patient-pharmacy relationship" and if they maintained the prescription on file as required by state law. at 73aโ75a. Compounding in such circumstances was permitted as long as the pharmacy's activities did not raise "the kinds of concerns normally associated with a manufacturer." at 76a. The Guide listed nine examples of activities that the FDA believed raised such concerns and that would therefore be considered by the agency in determining whether to bring an enforcement action. These activities included: "[s]oliciting business (e. g., promoting, advertising, or using salespersons) to compound specific drug products, product classes, or therapeutic classes of drug products"; "[c]ompounding, regularly, or in inordinate amounts, drug products that are commercially available and that are essentially generic copies of commercially available, FDAโapproved drug products"; using commercial scale manufacturing or testing equipment to compound drugs; offering compounded drugs at wholesale; and "[d]istributing inordinate amounts of compounded products out of state." at 76aโ77a. The Guide further warned that pharmacies could not dispense drugs to third parties for resale to individual patients without losing their status as retail entities. at 75a. 364 Congress turned portions of this policy into law when it enacted the FDAMA in 1997. The FDAMA, which amends the FDCA, exempts compounded drugs from the FDCA's "new drug" requirements and other requirements provided the drugs satisfy a number of restrictions. First, they must be compounded by a licensed pharmacist or physician in response to a valid prescription for an identified individual patient, or, if prepared before the receipt of such a prescription, they must be made only in "limited quantities" and in response to a history of the licensed pharmacist's or physician's receipt of valid prescription orders for that drug product within an established relationship between the pharmacist, the patient, and the prescriber. 21 U.S. C. ง 353a(a). Second, the compounded drug must be made from approved ingredients that meet certain manufacturing and safety standards, งง 353a(b)(1)(A)โ(B), and the compounded drug may not appear on an FDA list of drug products that have been withdrawn or removed from the market because they were found to be unsafe or ineffective, ง 353a(b)(1)(C). Third, the pharmacist or physician compounding the drug may not "compound regularly or in inordinate amounts (as defined by the Secretary) any drug products that are essentially copies of a commercially available drug product." ง 353a(b)(1)(D). Fourth, the drug product must not be identified by the FDA as a drug product that presents demonstrable difficulties for compounding in terms of safety or effectiveness. ง 353a(b)(3)(A). Fifth, in States that have not entered into a "memorandum of understanding" with the FDA addressing the distribution of "inordinate amounts" of compounded drugs in interstate commerce, the pharmacy, pharmacist, or physician compounding the drug may not distribute compounded drugs out of state in quantities exceeding five percent of that entity's total prescription orders. ง 353a(b)(3)(B). Finally, and most relevant for this litigation, the prescription must be "unsolicited," ง 353a(a), and the pharmacy, licensed pharmacist, or licensed physician 365 compounding the drug may "not advertise or promote the compounding of any particular drug, class of drug, or type of drug," ง 353a(c). The pharmacy, licensed pharmacist, or licensed physician may, however, "advertise and promote the compounding service." Respondents are a group of licensed pharmacies that specialize in drug compounding. They have prepared promotional materials that they distribute by mail and at medical conferences to inform patients and physicians of the use and effectiveness of specific compounded drugs. Fearing that they would be prosecuted under the FDAMA if they continued to distribute those materials, respondents filed a complaint in the United States District Court for the District of Nevada, arguing that the Act's requirement that they refrain from advertising and promoting their products if they wish to continue compounding violates the Free Speech Clause of the First Amendment. Specifically, they challenged the requirement that prescriptions for compounded drugs be "unsolicited," 21 U.S. C. ง 353a(a), and the requirement that pharmacists "not advertise or promote the compounding of any particular drug, class of drug, or type of drug," ง 353a(c). The District Court granted summary judgment to respondents, finding that the FDAMA's speech-related provisions constitute unconstitutional restrictions on commercial speech under Central 447 U. S., at and that their enforcement should therefore be enjoined. Western States Medical The District Court, however, found those provisions to be severable from the rest of ง 127(a) of the FDAMA, 21 U.S. C. ง 353a, and so left the Act's other compounding requirements intact. The Government appealed both the holding that the speech-related provisions were unconstitutional and the holding that those provisions were severable from the rest of ง 127(a). The Court of Appeals for the Ninth Circuit affirmed in part and reversed in part. Western States Med- 366 ical The Court of Appeals agreed that the FDAMA's advertisement and solicitation restrictions fail Central `s test for permissible regulation of commercial speech, finding that the Government had not demonstrated that the speech restrictions would directly advance its interests or that alternatives less restrictive of speech were unavailable. The Court of Appeals disagreed, however, that the speech-related restrictions were severable from the rest of ง 127(a), 21 U.S. C. ง 353a, explaining that the FDAMA's legislative history demonstrated that Congress intended to exempt compounding from the FDCA's requirements only in return for a prohibition on promotion of specific compounded drugs. Accordingly, the Court of Appeals invalidated ง 127(a) in its entirety. We granted certiorari, to consider whether the FDAMA's prohibitions on soliciting prescriptions for, and advertising, compounded drugs violate the First Amendment. Because neither party petitioned for certiorari on the severability issue, we have no occasion to review that portion of the Court of Appeals' decision. Likewise, the provisions of the FDAMA outside ง 127(a), which are unrelated to drug compounding, are not an issue here and so remain unaffected. II The parties agree that the advertising and soliciting prohibited by the FDAMA constitute commercial speech. In Virginia Bd. of the first case in which we explicitly held that commercial speech receives First Amendment protection, we explained the reasons for this protection: "It is a matter of public interest that [economic] decisions, in the aggregate, be intelligent and well-informed. To this end, the free flow of commercial information is indispensable." Indeed, we recognized that a "particular consumer's interest in the free flow of commercial information may be as keen, if not keener by far, than 367 his interest in the day's most urgent political debate." We have further emphasized: "The commercial marketplace, like other spheres of our social and cultural life, provides a forum where ideas and information flourish. Some of the ideas and information are vital, some of slight worth. But the general rule is that the speaker and the audience, not the government, assess the value of the information presented. Thus, even a communication that does no more than propose a commercial transaction is entitled to the coverage of the First Amendment." Although commercial speech is protected by the First Amendment, not all regulation of such speech is unconstitutional. See Virginia Bd. of In Central we articulated a test for determining whether a particular commercial speech regulation is constitutionally permissible. Under that test we ask as a threshold matter whether the commercial speech concerns unlawful activity or is misleading. If so, then the speech is not protected by the First Amendment. If the speech concerns lawful activity and is not misleading, however, we next ask "whether the asserted governmental interest is substantial." at If it is, then we "determine whether the regulation directly advances the governmental interest asserted," and, finally, "whether it is not more extensive than is necessary to serve that interest." Each of these latter three inquiries must be answered in the affirmative for the regulation to be found constitutional. Neither party has challenged the appropriateness of applying the Central framework to the speech-related provisions at issue here. Although several Members of the Court have expressed doubts about the Central analysis and whether it should apply in particular cases, see, e. g., Greater New Broadcasting Assn., ; 44 Liquormart, ; ; there is no need in this case to break new ground. "`Central as applied in our more recent commercial speech cases, provides an adequate basis for decision.' " Lorillard Tobacco (quoting Greater New ). III The Government does not attempt to defend the FDAMA's speech-related provisions under the first prong of the Central test; i. e., it does not argue that the prohibited advertisements would be about unlawful activity or would be misleading. Instead, the Government argues that the FDAMA satisfies the remaining three prongs of the Central test. The Government asserts that three substantial interests underlie the FDAMA. The first is an interest in "preserv[ing] the effectiveness and integrity of the FDCA's new drug approval process and the protection of the public health that it provides." Brief for Petitioners 19. The second is an interest in "preserv[ing] the availability of compounded drugs for those individual patients who, for particularized medical reasons, cannot use commercially available products that have been approved by the FDA." Finally, the Government argues that "[a]chieving the proper balance between those two independently compelling but competing interests is itself a substantial governmental interest." Explaining these interests, the Government argues that the FDCA's new drug approval requirements are critical to the public health and safety. It claims that the FDA's 369 experience with drug regulation demonstrates that proof of the safety and effectiveness of a new drug needs to be established by rigorous, scientifically valid clinical studies because impressions of individual doctors, who cannot themselves compile sufficient safety data, cannot be relied upon. The Government also argues that a premarket approval process, under which manufacturers are required to put their proposed drugs through tests of safety and effectiveness in order to obtain FDA approval to market the drugs, is the best way to guarantee drug safety and effectiveness. While it praises the FDCA's new drug approval process, the Government also acknowledges that "because obtaining FDA approval for a new drug is a costly process, requiring FDA approval of all drug products compounded by pharmacies for the particular needs of an individual patient would, as a practical matter, eliminate the practice of compounding, and thereby eliminate availability of compounded drugs for those patients who have no alternative treatment." The Government argues that eliminating the practice of compounding drugs for individual patients would be undesirable because compounding is sometimes critical to the care of patients with drug allergies, patients who cannot tolerate particular drug delivery systems, and patients requiring special drug dosages. Preserving the effectiveness and integrity of the FDCA's new drug approval process is clearly an important governmental interest, and the Government has every reason to want as many drugs as possible to be subject to that approval process. The Government also has an important interest, however, in permitting the continuation of the practice of compounding so that patients with particular needs may obtain medications suited to those needs. And it would not make sense to require compounded drugs created to meet the unique needs of individual patients to undergo the testing required for the new drug approval process. Pharmacists do not make enough money from 370 small-scale compounding to make safety and efficacy testing of their compounded drugs economically feasible, so requiring such testing would force pharmacists to stop providing compounded drugs. Given this, the Government needs to be able to draw a line between small-scale compounding and large-scale drug manufacturing. That line must distinguish compounded drugs produced on such a small scale that they could not undergo safety and efficacy testing from drugs produced and sold on a large enough scale that they could undergo such testing and therefore must do so. The Government argues that the FDAMA's speech-related provisions provide just such a line, i. e., that, in the terms of Central they "directly advanc[e] the governmental interest[s] asserted." 447 U.S., at Those provisions use advertising as the trigger for requiring FDA approvalโessentially, as long as pharmacists do not advertise particular compounded drugs, they may sell compounded drugs without first undergoing safety and efficacy testing and obtaining FDA approval. If they advertise their compounded drugs, however, FDA approval is required. The Government explains that traditional (or, in its view, desirable) compounding responds to a physician's prescription and an individual patient's particular medical situation, and that "[a]dvertising the particular products created in the provision of [such] service (as opposed to advertising the compounding service itself) is not necessary to this type of responsive and customized service." Brief for Petitioners 34. The Government argues that advertising particular products is useful in a broad market but is not useful when particular products are designed in response to an individual's "often unique need[s]." The Government contends that, because of this, advertising is not typically associated with compounding for particular individuals. In contrast it is typically associated, the Government claims, with large-scale production of a drug for a substantial market. The Government argues that advertising, 371 therefore, is "a fair proxy for actual or intended largescale manufacturing," and that Congress' decision to limit the FDAMA's compounding exemption to pharmacies that do not engage in promotional activity was "rationally calculated" to avoid creating "`a loophole that would allow unregulated drug manufacturing to occur under the guise of pharmacy compounding.' " The Government seems to believe that without advertising it would not be possible to market a drug on a large enough scale to make safety and efficacy testing economically feasible. The Government thus believes that conditioning an exemption from the FDA approval process on refraining from advertising is an ideal way to permit compounding and yet also guarantee that compounding is not conducted on such a scale as to undermine the FDA approval process. Assuming it is true that drugs cannot be marketed on a large scale without advertising, the FDAMA's prohibition on advertising compounded drugs might indeed "directly advanc[e]" the Government's interests. Central 447 U. S., at Even assuming that it does, however, the Government has failed to demonstrate that the speech restrictions are "not more extensive than is necessary to serve [those] interest[s]." In previous cases addressing this final prong of the Central test, we have made clear that if the Government could achieve its interests in a manner that does not restrict speech, or that restricts less speech, the Government must do so. In for example, we found a law prohibiting beer labels from displaying alcohol content to be unconstitutional in part because of the availability of alternatives "such as directly limiting the alcohol content of beers, prohibiting marketing efforts emphasizing high alcohol strength or limiting the labeling ban only to malt liquors." The fact that "all of [these alternatives] could advance the Government's asserted interest 372 in a manner less intrusive to First Amendment rights" indicated that the law was "more extensive than necessary." See also 44 Liquormart, (striking down a prohibition on advertising the price of alcoholic beverages in part because "alternative forms of regulation that would not involve any restriction on speech would be more likely to achieve the State's goal of promoting temperance"). Several non-speech-related means of drawing a line between compounding and large-scale manufacturing might be possible here. First, it seems that the Government could use the very factors the FDA relied on to distinguish compounding from manufacturing in its 1992 Guide. For example, the Government could ban the use of "commercial scale manufacturing or testing equipment for compounding drug products." Guide, App. to Pet. for Cert. 76a. It could prohibit pharmacists from compounding more drugs in anticipation of receiving prescriptions than in response to prescriptions already received. See It could prohibit pharmacists from "[o]ffering compounded drug products at wholesale to other state licensed persons or commercial entities for resale." at 77a. Alternately, it could limit the amount of compounded drugs, either by volume or by numbers of prescriptions, that a given pharmacist or pharmacy sells out of state. See Another possibility not suggested by the Guide would be capping the amount of any particular compounded drug, either by drug volume, number of prescriptions, gross revenue, or profit that a pharmacist or pharmacy may make or sell in a given period of time. It might even be sufficient to rely solely on the non-speechrelated provisions of the FDAMA, such as the requirement that compounding only be conducted in response to a prescription or a history of receiving a prescription, 21 U.S. C. ง 353a(a), and the limitation on the percentage of a pharmacy's total sales that out-of-state sales of compounded drugs may represent, ง 353a(b)(3)(B). 373 The Government has not offered any reason why these possibilities, alone or in combination, would be insufficient to prevent compounding from occurring on such a scale as to undermine the new drug approval process. Indeed, there is no hint that the Government even considered these or any other alternatives. Nowhere in the legislative history of the FDAMA or petitioners' briefs is there any explanation of why the Government believed forbidding advertising was a necessary as opposed to merely convenient means of achieving its interests. Yet "[i]t is well established that `the party seeking to uphold a restriction on commercial speech carries the burden of justifying it.' " 507 U. S., ). The Government simply has not provided sufficient justification here. If the First Amendment means anything, it means that regulating speech must be a lastโnot firstโresort. Yet here it seems to have been the first strategy the Government thought to try. The dissent describes another governmental interestโan interest in prohibiting the sale of compounded drugs to "patients who may not clearly need them," post, at 379 (opinion of Breyer, J.)โand argues that "Congress could conclude that the advertising restrictions `directly advance' " that interest, post, at 384. Nowhere in its briefs, however, does the Government argue that this interest motivated the advertising ban. Although, for the reasons given by the dissent, Congress conceivably could have enacted the advertising ban to advance this interest, we have generally only sustained statutes on the basis of hypothesized justifications when reviewing statutes merely to determine whether they are rational. See L. Tribe, American Constitutional Law 1444-1446 (2d ed. 1988) (describing the "rational basis" or "conceivable basis" test); see also, e. g., The Central test is significantly stricter than the rational basis test, however, requiring the Government not only to identify specifically "a substantial interest to be achieved by [the] restrictio[n] on commercial speech," but also to prove that the regulation "directly advances" that interest and is "not more extensive than is necessary to serve that interest," at The Government has not met any of these requirements with regard to the interest the dissent describes. Even if the Government had argued that the FDAMA's speech-related restrictions were motivated by a fear that advertising compounded drugs would put people who do not need such drugs at risk by causing them to convince their doctors to prescribe the drugs anyway, that fear would fail to justify the restrictions. Aside from the fact that this concern rests on the questionable assumption that doctors would prescribe unnecessary medications (an assumption the dissent is willing to make based on one magazine article and one survey, post, at 383-384, neither of which was relied upon by the Government), this concern amounts to a fear that people would make bad decisions if given truthful information about compounded drugs. See We have previously rejected the notion that the Government has an interest in preventing the dissemination of truthful commercial information in order to prevent members of the public from making bad decisions with the information. In Virginia Bd. of the State feared that if people received price advertising from pharmacists, they would "choose the low-cost, low-quality service and drive the `professional' pharmacist out of business" and would "destroy the pharmacist-customer relationship" by going from one 375 pharmacist to another. We found these fears insufficient to justify a ban on such advertising. We explained: "There is, of course, an alternative to this highly paternalistic approach. That alternative is to assume that this information is not in itself harmful, that people will perceive their own best interests if only they are well enough informed, and that the best means to that end is to open the channels of communication rather than to close them. But the choice among these alternative approaches is not ours to make or the Virginia General Assembly's. It is precisely this kind of choice, between the dangers of suppressing information, and the dangers of its misuse if it is freely available, that the First Amendment makes for us. Virginia is free to require whatever professional standards it wishes of its pharmacists; it may subsidize them or protect them from competition in other ways. But it may not do so by keeping the public in ignorance of the entirely lawful terms that competing pharmacists are offering." See also 44 Liquormart, ("[B]ans against truthful, nonmisleading commercial speech usually rest solely on the offensive assumption that the public will respond `irrationally' to the truth. The First Amendment directs us to be especially skeptical of regulations that seek to keep people in the dark for what the government perceives to be their own good" ). Even if the Government had asserted an interest in preventing people who do not need compounded drugs from obtaining those drugs, the statute does not directly advance that interest. The dissent claims that the Government "must exclude from the area of permitted drug sales those compounded drugs sought by patients who may not 376 clearly need them." Post, at 379. Yet the statute does not directly forbid such sales. It instead restricts advertising, of course not just to those who do not need compounded drugs, but also to individuals who do need compounded drugs and their doctors. Although the advertising ban may reduce the demand for compounded drugs from those who do not need the drugs, it does nothing to prevent such individuals from obtaining compounded drugs other than requiring prescriptions. But if it is appropriate for the statute to rely on doctors to refrain from prescribing compounded drugs to patients who do not need them, it is not clear why it would not also be appropriate to rely on doctors to refrain from prescribing compounded drugs to patients who do not need them in a world where advertising was permitted. The dissent may also be suggesting that the Government has an interest in banning the advertising of compounded drugs because patients who see such advertisements will be confused about the drugs' risks. See post, at 387 ("[The Government] fears the systematic effect of advertisements that will not fully explain the complicated risks at issue"). This argument is precluded, however, by the fact that the Government does not argue that the advertisements are misleading. Even if the Government did argue that it had an interest in preventing misleading advertisements, this interest could be satisfied by the far less restrictive alternative of requiring each compounded drug to be labeled with a warning that the drug had not undergone FDA testing and that its risks were unknown. If the Government's failure to justify its decision to regulate speech were not enough to convince us that the FDAMA's advertising provisions were unconstitutional, the amount of beneficial speech prohibited by the FDAMA would be. Forbidding the advertisement of compounded drugs would affect pharmacists other than those interested in producing drugs on a large scale. It would prevent pharmacists *377 with no interest in mass-producing medications, but who serve clienteles with special medical needs, from telling the doctors treating those clients about the alternative drugs available through compounding. For example, a pharmacist serving a children's hospital where many patients are unable to swallow pills would be prevented from telling the children's doctors about a new development in compounding that allowed a drug that was previously available only in pill form to be administered another way. Forbidding advertising of particular compounded drugs would also prohibit a pharmacist from posting a notice informing customers that if their children refuse to take medications because of the taste, the pharmacist could change the flavor, and giving examples of medications where flavoring is possible. The fact that the FDAMA would prohibit such seemingly useful speech even though doing so does not appear to directly further any asserted governmental objective confirms our belief that the prohibition is unconstitutional. Accordingly, we affirm the Court of Appeals' judgment that the speech-related provisions of FDAMA ง 127(a) are unconstitutional. So ordered.	1,997
Justice Thomas	concurring	false	Thompson v. Western States Medical Center	2002-04-29	null	https://www.courtlistener.com/opinion/118499/thompson-v-western-states-medical-center/	https://www.courtlistener.com/api/rest/v3/clusters/118499/	2,002	2001-041	2	5	4	I concur because I agree with the Court's application of the test set forth in Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of N. Y., 447 U.S. 557 (1980). I continue, however, to adhere to my view that cases such as this should not be analyzed under the Central Hudson test. "I do not believe that such a test should be applied to a restriction of `commercial' speech, at least when, as here, the asserted interest is one that is to be achieved through keeping would-be recipients of the speech in the dark." 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 523 (1996) (opinion concurring in part and concurring in judgment).	I concur because I agree with the Court's application of the test set forth in Central Hudson Gas & Elec. I continue, however, to adhere to my view that cases such as this should not be analyzed under the Central Hudson test. "I do not believe that such a test should be applied to a restriction of `commercial' speech, at least when, as here, the asserted interest is one that is to be achieved through keeping would-be recipients of the speech in the dark." 44 Liquormart,	1,998
Justice Breyer	dissenting	false	Thompson v. Western States Medical Center	2002-04-29	null	https://www.courtlistener.com/opinion/118499/thompson-v-western-states-medical-center/	https://www.courtlistener.com/api/rest/v3/clusters/118499/	2,002	2001-041	2	5	4	Federal law requires strict safety and efficacy testing of all "new" prescription "drugs." 21 U.S. C. ง 355. See 21 CFR ง 310.3(h) (2002) (defining "new drug" broadly). This testing process requires for every "new drug" a preclinical investigation and three separate clinical tests, including small, controlled studies of healthy and diseased humans as well as scientific double-blind studies designed to identify any possible health risk or side effect associated with the new drug. Practical Guide to Food and Drug Law and Regulation 95-102 (K. Pi๑a & W. Pines eds. 1998). The objective of this elaborate and time-consuming regulatory regime is to identify those health risksโboth large and smallโthat a doctor or pharmacist might not otherwise notice. At the same time, the law exempts from its testing requirements prescription drugs produced through "compounding"โa process "by which a pharmacist or doctor combines, mixes, or alters ingredients to create a medication tailored to the needs of an individual patient." Ante, at 360-361. The exemption is available, however, only if the pharmacist meets certain specified conditions, including the condition that the pharmacist not "advertise or promote the compounding of any particular drug." 21 U.S. C. ง 353a(c) (emphasis added). The Court holds that this condition restricts "commercial speech" in violation of the First Amendment. See Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of N. Y., 447 U.S. 557, 564 (1980). It concedes that the statutory provision tries to "[p]reserv[e] the effectiveness and integrity of the . . . new drug approval process," ante, at 369, and it assumes without deciding that the statute might "`directly advance' " that interest, ante, at 371. It nonetheless finds the statute unconstitutional because it could advance that interest in other, less restrictive ways. Ante, at 372-373. I disagree with this conclusion, and I believe that the Court 379 seriously undervalues the importance of the Government's interest in protecting the health and safety of the American public. I In my view, the advertising restriction "directly advances" the statute's important safety objective. That objective, as the Court concedes, is to confine the sale of untested, compounded, drugs to where they are medically needed. But to do so the statute must exclude from the area of permitted drug sales both (1) those drugs that traditional drug manufacturers might supply after testingโtypically drugs capable of being produced in large amounts, and (2) those compounded drugs sought by patients who may not clearly need themโincluding compounded drugs produced in small amounts. The majority's discussion focuses upon the first exclusionary need, but it virtually ignores the second. It describes the statute's objective simply as drawing a "line" that will "distinguish compounded drugs produced on such a small scale that they could not undergo safety and efficacy testing from drugs produced and sold on a large enough scale that they could undergo such testing and therefore must do so." Ante, at 370 (emphasis added). This description overlooks the need for a second lineโa line that will distinguish (1) sales of compounded drugs to those who clearly need them from (2) sales of compounded drugs to those for whom a specially tailored but untested drug is a convenience but not a medical necessity. That is to say, the statute, in seeking to confine distribution of untested tailored drugs, must look both at the amount supplied (to help decide whether ordinary manufacturers might provide a tested alternative) and at the nature of demand (to help separate genuine need from simple convenience). Cf. 143 Cong. Rec. S9840 (Sept. 24, 1997) (remarks of Sen. Kennedy) (understanding that "some of the conditions are intended to ensure that the volume of compounding does not approach that ordinarily associated 380 with drug manufacturing" while others are "intended to ensure that the compounded drugs that qualify for the exemption have appropriate assurances of quality and safety since [they] would not be subject to the more comprehensive regulatory requirements that apply to manufactured drug products"). This second intermediate objective is logically related to Congress' primary endโthe minimizing of safety risks. The statute's basic exemption from testing requirements inherently creates risks simply by placing untested drugs in the hands of the consumer. Where an individual has a specific medical need for a specially tailored drug those risks are likely offset. But where an untested drug is a convenience, not a necessity, that offset is unlikely to be present. That presumably is why neither the Food and Drug Administration (FDA) nor Congress anywhere suggests that all that matters is the total amount of a particular drug's sales. That is why the statute's history suggests that the amount supplied is not the whole story. See S. Rep. No. 105-43, p. 67 (1997) (statute seeks to assure "continued availability of compounded drug products as a component of individualized therapy, . . . while . . . prevent[ing] small-scale manufacturing under the guise of compounding" (emphasis added)); accord, H. R. Conf. Rep. No. 105-399, p. 94 (1997). That is why the statute itself, as well as the FDA policy that the statute reflects, lists several distinguishing factors, of which advertising is one. See FDA Compliance Policy Guide 7132.16, reprinted in App. to Pet. for Cert. 71aโ77a (hereinafter Compliance Policy Guide). And that is likely why, when faced with the possibility of severing the advertising restriction from the rest of the statute, the Government argued that the "other conditions in section 353a alone are inadequate to achieve Congress's desired balance among competing interests." See Brief for Appellants in No. 99-17424 (CA9), p. 57. See also id., at 55 (to nullify advertising restrictions would undermine "`finely tuned balance' " achieved 381 by requiring that "pharmacies refrain from promoting and soliciting prescriptions for particular compounded drug products until they have been proven safe and effective"). Ensuring that the risks associated with compounded drug prescriptions are offset by the benefits is also why public health authorities, testifying in Congress, insisted that the doctor's prescription represent an individualized determination of need. See, e. g., FDA Reform Legislation: Hearings before the Subcommittee on Health and the Environment of the House Committee on Commerce, 104th Cong., 2d Sess., 120 (1996) (hereinafter FDA Reform Legislation) (statement of Mary K. Pendergast, Deputy Commissioner of the FDA and Senior Advisor to the Commissioner) (Allowing traditional compounding is "good medicine" because "an individual physician" was making "an individualized determination for a patient"). See also National Association of Boards of Pharmacy, Model State Pharmacy Act and Rules, Art. I, ง 1.05(e) (1996) (hereinafter NABP Model Act) (defining "[c]ompounding" as involving a prescription "based on the Practitioner/patient/Pharmacist relationship in the course of professional practice"). And that, in part, is why federal and state authorities have long permitted pharmacists to advertise the fact that they compound drugs, while forbidding the advertisement of individual compounds. See Compliance Policy Guide 76a; Good Compounding Practices Applicable to State Licensed Pharmacies, NABP Model Act, App. C.2, subpart A (forbidding pharmacists to "solicit business (e. g., promote, advertise, or use salespersons) to compound specific drug products"). The definitions of drug manufacturing and compounding used by the NABP and at least 13 States reflect similar distinctions. NABP Model Act, Art. I, งง 105(e), (t), and (u) (defining drug manufacturing to "include the promotion and marketing of such drugs or devices" but excluding any reference to promotion or marketing from the definition of drug compounding); Alaska Stat. งง 08.80.480(3) and (15) (2000) 382 (same); La. Stat. Ann. งง 37:1164(5) and (25) (West 2000) (same); Miss. Code Ann. งง 73-21-73(c) and (s) (Lexis 1973โ 2000) (same); Mont. Code Ann. ง 37-7โ101(7) (1997) (same); N. H. Rev. Stat. Ann. งง 318-1(III) and (VIII) (Supp. 2001) (same); N. M. Stat. Ann. งง 61-11-2(C) and (Q) (2001) (same); Ohio Rev. Code Ann. ง 3715.01(14) (West Supp. 2002) (same); Okla. Stat., Tit. 59, งง 353.1(20) and (26) (Supp. 2002) (same); S. C. Code Ann. งง 40-43-30(7) and (29) (2001) (same); Tenn. Code Ann. งง 63-10-404(4) and (18) (1997) (same); Tex. Occ. Code Ann. งง 551.003(9) and (23) (2002 Pamphlet) (same); W. Va. Code งง 30-5โ1b(c) and (o) (1966-1998) (same). These policies and statutory provisions reflect the view that individualized consideration is more likely present, and convenience alone is more likely absent, when demand for a compounding prescription originates with a doctor, not an advertisement. The restrictions try to assure that demand is generated doctor-to-patient-to-pharmacist, not pharmacist-to-advertisement-to-patient-to-doctor. And they do so in order to diminish the likelihood that those who do not genuinely need untested compounded drugs will not receive them. There is considerable evidence that the relevant meansโ the advertising restrictionsโdirectly advance this statutory objective. No one denies that the FDA's complex testing system for new drugsโa system that typically relies upon double-blind or other scientific studiesโis more likely to find, and to assess, small safety risks than are physicians or pharmacists relying upon impressions and anecdotes. See supra, at 378. Nor can anyone deny that compounded drugs carry with them special risks. After all, compounding is not necessarily a matter of changing a drug's flavor, cf. ante, at 377, but rather it is a matter of combining different ingredients in new, untested ways, say, adding a pain medication to an antihistamine to counteract allergies or increasing the ratio of approved ingredients in a salve to help the body absorb it 383 at a faster rate. And the risks associated with the untested combination of ingredients or the quicker absorption rate or the working conditions necessary to change an old drug into its new form can, for some patients, mean infection, serious side effects, or even death. See, e. g., J. Thompson, A Practical Guide to Contemporary Pharmacy Practice 11.5 (1998) (hereinafter Contemporary Pharmacy Practice). Cf. 21 CFR ง 310.3(h)(1) (2002) (considering a drug to be "new" and subject to the approval process if the "substance which composes such drug" is new); ง 310.3(h)(3) (considering a drug to be "new" and subject to the approval process if approved ingredients are combined in new proportions). There is considerable evidence that consumer oriented advertising will create strong consumer-driven demand for a particular drug. See, e. g., National Institute for Health Care Management, Factors Affecting the Growth of Prescription Drug Expenditures iii (July 9, 1999) (three antihistamine manufacturers spent $313 million on advertising in 1998 and accounted for 90% of prescription drug antihistamine market); Kritz, Ask Your Doctor About . . . Which of the Many Advertised Allergy Drugs Are Right for You? Washington Post, June 6, 2000, Health, p. 9 (The manufacturer of the world's top selling allergy drug, the eighth best-selling drug in the United States, spent almost $140 million in 1999 on advertising); 1999 Prevention Magazine 10 (spending on direct-to-consumer advertising of prescription medicine increased from $965.2 million in 1997 to $1.33 billion in 1998). And there is strong evidence that doctors will often respond affirmatively to a patient's request for a specific drug that the patient has seen advertised. See id., at 32 (84% of consumers polled report that doctors accommodate their request for a specific drug); Henry J. Kaiser Family Foundation, Understanding the Effects of Direct-to-Consumer Prescription Drug Advertising 3 (Nov. 2001) (A foundation survey found that more than one in eight Americans had asked 384 forโand receivedโa specific prescription from their doctor in response to an advertisement). In these circumstances, Congress could reasonably conclude that doctors will respond affirmatively to a patient's request for a compounded drug even if the doctor would not normally prescribe it. When a parent learns that a child's pill can be administered in liquid form, when a patient learns that a compounded skin cream has an enhanced penetration rate, or when an allergy sufferer learns that a compounded antiinflammatory/allergy medication can alleviate a sinus headache without the sedative effects of antihistamines, that parent or patient may well ask for the desired prescription. And the doctor may well write the prescription even in the absence of special needโat least if any risk likely to arise from lack of testing is so small that only scientific testing, not anecdote or experience, would reveal it. It is consequently not surprising that 71% of the active members of the American Academy of Family Physicians "believe that direct-to-consumer advertising pressures physicians into prescribing drugs that they would not ordinarily prescribe." Rosenthal, Berndt, Donohue, Frank, & Epstein, Promotion of Prescription Drugs to Consumers, 346 New Eng. J. Med. 498-505 (2002) (citing Lipsky, The Opinions and Experiences of Family Physicians Regarding Direct-To-Consumer Advertising, 45 J. Fam. Pract. 495-499 (1997)). Of course, the added risks in any such individual case may be small. But those individual risks added together can significantly affect the public health. At least, the FDA and Congress could reasonably reach that conclusion. And that fact, along with the absence of any significant evidence that the advertising restrictions have prevented doctors from learning about, or obtaining, compounded drugs, means that the FDA and Congress could also conclude that the advertising restrictions "directly advance" the statute's safety goal. They help to assure that demand for an untested compounded drug originates with the doctor, responding to an 385 individual's special medical needs; they thereby help to restrict the untested drug's distribution to those most likely to need it; and they thereby advance the statute's safety goals. There is no reason for this Court, as a matter of constitutional law, to reach a different conclusion. II I do not believe that Congress could have achieved its safety objectives in significantly less restrictive ways. Consider the several alternatives the Court suggests. First, it says that "the Government could ban the use of `commercial scale manufacturing or testing equipment for compounding drug products.' " Ante, at 372. This alternative simply restricts compounding to drugs produced in small batches. It would neither limit the total quantity of compounded drugs produced, nor help in any way to assure the kind of individualized doctor-patient need determination that the statute's advertising restriction are designed to help achieve. Second, the Court says that the Government "could prohibit pharmacists from compounding more drugs in anticipation of receiving prescriptions than in response to prescriptions already received." Ibid. This alternative, while addressing the issue of quantity, does virtually nothing to promote the second, need-related statutory objective. Third, the Court says the Government "could prohibit pharmacists from `[o]ffering compounded drug products at wholesale to other state licensed persons or commercial entities for resale." Ibid. This alternative is open to the same objection. Fourth, the Court says the Government "could limit the amount of compounded drugs, either by volume or by numbers of prescriptions, that a given pharmacist or pharmacy sells out of state." Ibid. This alternative, applying only to out-of-state sales, would not significantly restrict sales, either in respect to amounts or in respect to patient need. 386 In fact, it could prevent compounded drugs from reaching out-of-state patients who genuinely need them. Fifth, the Court says that the Government could "ca[p] the amount of any particular compounded drug, either by drug volume, number of prescriptions, gross revenue, or profit." Ibid. This alternative, like the others, ignores the patientneed problem, while simultaneously threatening to prevent compounded drugs from reaching those who genuinely need them, say, a patient whose prescription represents one beyond the arbitrarily imposed quantitative limit. Sixth, the Court says that the Government could rely upon "non-speech-related provisions of the FDAMA, such as the requirement that compounding only be conducted in response to a prescription." Ibid. This alternative also ignores the patient-need problem and was specifically rejected by the Government in the Court of Appeals for the Ninth Circuit. See supra, at 380-381. The Court adds that "[t]he Government has not offered any reason why these possibilities, alone or in combination, would be insufficient." Ante, at 373. The Government's failure to do so may reflect the fact that only the Court, not any of the respondents, has here suggested that these "alternatives," alone or in combination, would prove sufficient. In fact, the FDA's Compliance Policy Guide, from which the Court draws its first four alternatives, specifically warned that these alternatives alone were insufficient to successfully distinguish traditional compounding from unacceptable manufacturing. See Compliance Policy Guide 77a. III The Court responds to the claim that advertising compounded drugs causes people to obtain drugs that do not promote their health, by finding it implausible given the need for a prescription and by suggesting that it is not relevant. The First Amendment, it says, does not permit the Government to control the content of advertising, where 387 doing so flows from "fear" that "people would make bad decisions if given truthful information about compounded drugs." Ante, at 374. This response, however, does not fully explain the Government's regulatory rationale; it fails to take account of considerations that make the claim more than plausible (if properly stated); and it is inconsistent with this Court's interpretation of the Constitution. It is an oversimplification to say that the Government "fear[s]" that doctors or patients "would make bad decisions if given truthful information." Ibid. Rather, the Government fears the safety consequences of multiple compound-drug prescription decisions initiated not by doctors but by pharmacist-to-patient advertising. Those consequences flow from the adverse cumulative effects of multiple individual decisions each of which may seem perfectly reasonable considered on its own. The Government fears that, taken together, these apparently rational individual decisions will undermine the safety testing system, thereby producing overall a net balance of harm. See, e. g., FDA Reform Legislation 121 (statement of David A. Kessler, Commissioner of the FDA) (voicing concerns about "quality controls" and the integrity of the drug-testing system). Consequently, the Government leaves pharmacists free to explain through advertisements what compounding is, to advertise that they engage in compounding, and to advise patients to discuss the matter with their physicians. And it forbids advertising the specific drug in question, not because it fears the "information" the advertisement provides, but because it fears the systematic effect, insofar as advertisements solicit business, of advertisements that will not fully explain the complicated risks at issue. And this latter fear is more than plausible. See Part I, supra. I do not deny that the statute restricts the circulation of some truthful information. It prevents a pharmacist from including in an advertisement the information that "this pharmacy will compound Drug X." Nonetheless, this Court 388 has not previously held that commercial advertising restrictions automatically violate the First Amendment. Rather, the Court has applied a more flexible test. It has examined the restriction's proportionality, the relation between restriction and objective, the fit between ends and means. In doing so, the Court has asked whether the regulation of commercial speech "directly advances" a "substantial" governmental objective and whether it is "more extensive than is necessary" to achieve those ends. See Central Hudson, 447 U. S., at 566. It has done so because it has concluded that, from a constitutional perspective, commercial speech does not warrant application of the Court's strictest speechprotective tests. And it has reached this conclusion in part because restrictions on commercial speech do not often repress individual self-expression; they rarely interfere with the functioning of democratic political processes; and they often reflect a democratically determined governmental decision to regulate a commercial venture in order to protect, for example, the consumer, the public health, individual safety, or the environment. See, e. g., 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 499 (1996) ("[T]he State's power to regulate commercial transactions justifies its concomitant power to regulate commercial speech that is `linked inextricably' to those transactions"); L. Tribe, American Constitutional Law ง 12-15, p. 903 (2d ed. 1988) ("[C]ommercial speech doctrine" seeks to accommodate "the right to speak and hear expression about goods and services" with "the right of government to regulate the sales of such goods and services" (emphasis in original)). I have explained why I believe the statute satisfies this more flexible test. See Parts I and II, supra. The Court, in my view, gives insufficient weight to the Government's regulatory rationale, and too readily assumes the existence of practical alternatives. It thereby applies the commercial speech doctrine too strictly. Cf. Buckman Co. v. Plaintiffs' Legal Comm., 531 U.S. 341, 349 (2001) (flexibility necessary 389 if FDA is to "pursu[e] difficult (and often competing) objectives"). See also Illinois Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 188-189 (1979) (Blackmun, J., concurring) (warning against overly demanding search for less restrictive alternatives). In my view, the Constitution demands a more lenient application, an application that reflects the need for distinctions among contexts, forms of regulation, and forms of speech, and which, in particular, clearly distinguishes between "commercial speech" and other forms of speech demanding stricter constitutional protection. Otherwise, an overly rigid "commercial speech" doctrine will transform what ought to be a legislative or regulatory decision about the best way to protect the health and safety of the American public into a constitutional decision prohibiting the legislature from enacting necessary protections. As history in respect to the Due Process Clause shows, any such transformation would involve a tragic constitutional misunderstanding. See id., at 189 (Blackmun, J., concurring). IV Finally, the majority would hold the statute unconstitutional because it prohibits pharmacists from advertising compounded drugs to doctors. Ante, at 376-377. Doctors, however, obtain information about individual drugs through many other channels. And there is no indication that restrictions on commercial advertising have had any negative effect on the flow of this information. See e. g., Contemporary Pharmacy Practice 11.4 (compounded drug information "available" and "widely disseminated" through books, journals, monographs, and vendors). Nor, with one exception, have doctors or groups of doctors complained that the statute will interfere with that flow of information in the future. But see Brief for Julian M. Whitaker, M.D., et al. as Amici Curiae 1 (alleging, without evidentiary support, that the regulations prevent doctors from knowing how to 390 get "competitively priced compounded drugs as efficiently as possble"). Regardless, we here consider a facial attack on the statute. The respondents here focus their attack almost entirely upon consumer-directed advertising. They have not fully addressed separate questions involving the effect of advertising restrictions on information received by physicians. I would consequently leave these questions in abeyance. Considering the statute only insofar as it applies to advertising directed at consumers, I would hold it constitutional. For these reasons, I dissent.	Federal law requires strict safety and efficacy testing of all "new" prescription "drugs." 21 U.S. C. ง 355. See 21 CFR ง 310.3(h) (2002) (defining "new drug" broadly). This testing process requires for every "new drug" a preclinical investigation and three separate clinical tests, including small, controlled studies of healthy and diseased humans as well as scientific double-blind studies designed to identify any possible health risk or side effect associated with the new drug. Practical Guide to Food and Drug Law and Regulation 95-102 (K. Pi๑a & W. Pines eds. 1998). The objective of this elaborate and time-consuming regulatory regime is to identify those health risksโboth large and smallโthat a doctor or pharmacist might not otherwise notice. At the same time, the law exempts from its testing requirements prescription drugs produced through "compounding"โa process "by which a pharmacist or doctor combines, mixes, or alters ingredients to create a medication tailored to the needs of an individual patient." Ante, at 360-361. The exemption is available, however, only if the pharmacist meets certain specified conditions, including the condition that the pharmacist not "advertise or promote the compounding of any particular drug." 21 U.S. C. ง 353a(c) (emphasis added). The Court holds that this condition restricts "commercial speech" in violation of the First Amendment. See Central Gas & Elec. t concedes that the statutory provision tries to "[p]reserv[e] the effectiveness and integrity of the new drug approval process," ante, at 369, and it assumes without deciding that the statute might "`directly advance' " that interest, ante, at 371. t nonetheless finds the statute unconstitutional because it could advance that interest in other, less restrictive ways. Ante, at 372-373. disagree with this conclusion, and believe that the Court 379 seriously undervalues the importance of the Government's interest in protecting the health and safety of the American public. n my view, the advertising restriction "directly advances" the statute's important safety objective. That objective, as the Court concedes, is to confine the sale of untested, compounded, drugs to where they are medically needed. But to do so the statute must exclude from the area of permitted drug sales both (1) those drugs that traditional drug manufacturers might supply after testingโtypically drugs capable of being produced in large amounts, and (2) those compounded drugs sought by patients who may not clearly need themโincluding compounded drugs produced in small amounts. The majority's discussion focuses upon the first exclusionary need, but it virtually ignores the second. t describes the statute's objective simply as drawing a "line" that will "distinguish compounded drugs produced on such a small scale that they could not undergo safety and efficacy testing from drugs produced and sold on a large enough scale that they could undergo such testing and therefore must do so." Ante, at 370 (emphasis added). This description overlooks the need for a second lineโa line that will distinguish (1) sales of compounded drugs to those who clearly need them from (2) sales of compounded drugs to those for whom a specially tailored but untested drug is a convenience but not a medical necessity. That is to say, the statute, in seeking to confine distribution of untested tailored drugs, must look both at the amount supplied (to help decide whether ordinary manufacturers might provide a tested alternative) and at the nature of demand (to help separate genuine need from simple convenience). Cf. 143 Cong. Rec. S9840 (Sept. 24, 1997) (remarks of Sen. Kennedy) (understanding that "some of the conditions are intended to ensure that the volume of compounding does not approach that ordinarily associated 380 with drug manufacturing" while others are "intended to ensure that the compounded drugs that qualify for the exemption have appropriate assurances of quality and safety since [they] would not be subject to the more comprehensive regulatory requirements that apply to manufactured drug products"). This second intermediate objective is logically related to Congress' primary endโthe minimizing of safety risks. The statute's basic exemption from testing requirements inherently creates risks simply by placing untested drugs in the hands of the consumer. Where an individual has a specific medical need for a specially tailored drug those risks are likely offset. But where an untested drug is a convenience, not a necessity, that offset is unlikely to be present. That presumably is why neither the Food and Drug Administration (FDA) nor Congress anywhere suggests that all that matters is the total amount of a particular drug's sales. That is why the statute's history suggests that the amount supplied is not the whole story. See S. Rep. No. 105-43, p. 67 (1997) (statute seeks to assure "continued availability of compounded drug products as a component of individualized therapy, while prevent[ing] small-scale manufacturing under the guise of compounding" (emphasis added)); accord, H. R. Conf. Rep. No. 105-399, p. 94 (1997). That is why the statute itself, as well as the FDA policy that the statute reflects, lists several distinguishing factors, of which advertising is one. See FDA Compliance Policy Guide 7132.16, reprinted in App. to Pet. for Cert. 71aโ77a (hereinafter Compliance Policy Guide). And that is likely why, when faced with the possibility of severing the advertising restriction from the rest of the statute, the Government argued that the "other conditions in section 353a alone are inadequate to achieve Congress's desired balance among competing interests." See Brief for Appellants in No. 99-17424 (CA9), p. 57. See also Ensuring that the risks associated with compounded drug prescriptions are offset by the benefits is also why public health authorities, testifying in Congress, insisted that the doctor's prescription represent an individualized determination of need. See, e. g., FDA Reform Legislation: Hearings before the Subcommittee on Health and the Environment of the House Committee on Commerce, 104th Cong., 2d Sess., 120 (hereinafter FDA Reform Legislation) (statement of Mary K. Pendergast, Deputy Commissioner of the FDA and Senior Advisor to the Commissioner) (Allowing traditional compounding is "good medicine" because "an individual physician" was making "an individualized determination for a patient"). See also National Association of Boards of Pharmacy, Model State Pharmacy Act and Rules, Art. ง 1.05(e) (hereinafter NABP Model Act) (defining "[c]ompounding" as involving a prescription "based on the Practitioner/patient/Pharmacist relationship in the course of professional practice"). And that, in part, is why federal and state authorities have long permitted pharmacists to advertise the fact that they compound drugs, while forbidding the advertisement of individual compounds. See Compliance Policy Guide 76a; Good Compounding Practices Applicable to State Licensed Pharmacies, NABP Model Act, App. C.2, subpart A (forbidding pharmacists to "solicit business (e. g., promote, advertise, or use salespersons) to compound specific drug products"). The definitions of drug manufacturing and compounding used by the NABP and at least 13 States reflect similar distinctions. NABP Model Act, Art. งง 105(e), (t), and (u) (defining drug manufacturing to "include the promotion and marketing of such drugs or devices" but excluding any reference to promotion or marketing from the definition of drug compounding); Alaska Stat. งง 08.80.480(3) and (15) (2000) 382 (same); La. Stat. Ann. งง 37:1164(5) and (25) (West 2000) (same); Miss. Code Ann. งง 73-21-73(c) and (s) (Lexis 1973โ 2000) (same); Mont. Code Ann. ง 37-7โ101(7) (1997) (same); N. H. Rev. Stat. Ann. งง 318-1() and (V) (same); N. M. Stat. Ann. งง 61-11-2(C) and (Q) (same); Ohio Rev. Code Ann. ง 3715.01(14) (West Supp. 2002) (same); Okla. Stat., Tit. 59, งง 353.1(20) and (26) (Supp. 2002) (same); S. C. Code Ann. งง 40-43-30(7) and (29) (same); Tenn. Code Ann. งง 63-10-404(4) and (18) (1997) (same); Tex. Occ. Code Ann. งง 551.003(9) and (23) (2002 Pamphlet) (same); W. Va. Code งง 30-5โ1b(c) and (o) (1966-1998) (same). These policies and statutory provisions reflect the view that individualized consideration is more likely present, and convenience alone is more likely absent, when demand for a compounding prescription originates with a doctor, not an advertisement. The restrictions try to assure that demand is generated doctor-to-patient-to-pharmacist, not pharmacist-to-advertisement-to-patient-to-doctor. And they do so in order to diminish the likelihood that those who do not genuinely need untested compounded drugs will not receive them. There is considerable evidence that the relevant meansโ the advertising restrictionsโdirectly advance this statutory objective. No one denies that the FDA's complex testing system for new drugsโa system that typically relies upon double-blind or other scientific studiesโis more likely to find, and to assess, small safety risks than are physicians or pharmacists relying upon impressions and anecdotes. See Nor can anyone deny that compounded drugs carry with them special risks. After all, compounding is not necessarily a matter of changing a drug's flavor, cf. ante, at 377, but rather it is a matter of combining different ingredients in new, untested ways, say, adding a pain medication to an antihistamine to counteract allergies or increasing the ratio of approved ingredients in a salve to help the body absorb it 383 at a faster rate. And the risks associated with the untested combination of ingredients or the quicker absorption rate or the working conditions necessary to change an old drug into its new form can, for some patients, mean infection, serious side effects, or even death. See, e. g., J. Thompson, A Practical Guide to Contemporary Pharmacy Practice 11.5 (1998) (hereinafter Contemporary Pharmacy Practice). Cf. 21 CFR ง 310.3(h)(1) (2002) (considering a drug to be "new" and subject to the approval process if the "substance which composes such drug" is new); ง 310.3(h)(3) (considering a drug to be "new" and subject to the approval process if approved ingredients are combined in new proportions). There is considerable evidence that consumer oriented advertising will create strong consumer-driven demand for a particular drug. See, e. g., National nstitute for Health Care Management, Factors Affecting the Growth of Prescription Drug Expenditures iii (July 9, 1999) (three antihistamine manufacturers spent $313 million on advertising in 1998 and accounted for 90% of prescription drug antihistamine market); Kritz, Ask Your Doctor About Which of the Many Advertised Allergy Drugs Are Right for You? Washington Post, June 6, 2000, Health, p. 9 (The manufacturer of the world's top selling allergy drug, the eighth best-selling drug in the United States, spent almost $140 million in 1999 on advertising); 1999 Prevention Magazine 10 (spending on direct-to-consumer advertising of prescription medicine increased from $965.2 million in 1997 to $1.33 billion in 1998). And there is strong evidence that doctors will often respond affirmatively to a patient's request for a specific drug that the patient has seen advertised. See ; Henry J. Kaiser Family Foundation, Understanding the Effects of Direct-to-Consumer Prescription Drug Advertising 3 (A foundation survey found that more than one in eight Americans had asked 384 forโand receivedโa specific prescription from their doctor in response to an advertisement). n these circumstances, Congress could reasonably conclude that doctors will respond affirmatively to a patient's request for a compounded drug even if the doctor would not normally prescribe it. When a parent learns that a child's pill can be administered in liquid form, when a patient learns that a compounded skin cream has an enhanced penetration rate, or when an allergy sufferer learns that a compounded antiinflammatory/allergy medication can alleviate a sinus headache without the sedative effects of antihistamines, that parent or patient may well ask for the desired prescription. And the doctor may well write the prescription even in the absence of special needโat least if any risk likely to arise from lack of testing is so small that only scientific testing, not anecdote or experience, would reveal it. t is consequently not surprising that 71% of the active members of the American Academy of Family Physicians "believe that direct-to-consumer advertising pressures physicians into prescribing drugs that they would not ordinarily prescribe." Rosenthal, Berndt, Donohue, Frank, & Epstein, Promotion of Prescription Drugs to Consumers, -505 (2002) (citing Lipsky, The Opinions and Experiences of Family Physicians Regarding Direct-To-Consumer Advertising, 45 J. Fam. Pract. 495- (1997)). Of course, the added risks in any such individual case may be small. But those individual risks added together can significantly affect the public health. At least, the FDA and Congress could reasonably reach that conclusion. And that fact, along with the absence of any significant evidence that the advertising restrictions have prevented doctors from learning about, or obtaining, compounded drugs, means that the FDA and Congress could also conclude that the advertising restrictions "directly advance" the statute's safety goal. They help to assure that demand for an untested compounded drug originates with the doctor, responding to an 385 individual's special medical needs; they thereby help to restrict the untested drug's distribution to those most likely to need it; and they thereby advance the statute's safety goals. There is no reason for this Court, as a matter of constitutional law, to reach a different conclusion. do not believe that Congress could have achieved its safety objectives in significantly less restrictive ways. Consider the several alternatives the Court suggests. First, it says that "the Government could ban the use of `commercial scale manufacturing or testing equipment for compounding drug products.' " Ante, at 372. This alternative simply restricts compounding to drugs produced in small batches. t would neither limit the total quantity of compounded drugs produced, nor help in any way to assure the kind of individualized doctor-patient need determination that the statute's advertising restriction are designed to help achieve. Second, the Court says that the Government "could prohibit pharmacists from compounding more drugs in anticipation of receiving prescriptions than in response to prescriptions already received." This alternative, while addressing the issue of quantity, does virtually nothing to promote the second, need-related statutory objective. Third, the Court says the Government "could prohibit pharmacists from `[o]ffering compounded drug products at wholesale to other state licensed persons or commercial entities for resale." This alternative is open to the same objection. Fourth, the Court says the Government "could limit the amount of compounded drugs, either by volume or by numbers of prescriptions, that a given pharmacist or pharmacy sells out of state." This alternative, applying only to out-of-state sales, would not significantly restrict sales, either in respect to amounts or in respect to patient need. 386 n fact, it could prevent compounded drugs from reaching out-of-state patients who genuinely need them. Fifth, the Court says that the Government could "ca[p] the amount of any particular compounded drug, either by drug volume, number of prescriptions, gross revenue, or profit." This alternative, like the others, ignores the patientneed problem, while simultaneously threatening to prevent compounded drugs from reaching those who genuinely need them, say, a patient whose prescription represents one beyond the arbitrarily imposed quantitative limit. Sixth, the Court says that the Government could rely upon "non-speech-related provisions of the FDAMA, such as the requirement that compounding only be conducted in response to a prescription." This alternative also ignores the patient-need problem and was specifically rejected by the Government in the Court of Appeals for the Ninth Circuit. See The Court adds that "[t]he Government has not offered any reason why these possibilities, alone or in combination, would be insufficient." Ante, at 373. The Government's failure to do so may reflect the fact that only the Court, not any of the respondents, has here suggested that these "alternatives," alone or in combination, would prove sufficient. n fact, the FDA's Compliance Policy Guide, from which the Court draws its first four alternatives, specifically warned that these alternatives alone were insufficient to successfully distinguish traditional compounding from unacceptable manufacturing. See Compliance Policy Guide 77a. The Court responds to the claim that advertising compounded drugs causes people to obtain drugs that do not promote their health, by finding it implausible given the need for a prescription and by suggesting that it is not relevant. The First Amendment, it says, does not permit the Government to control the content of advertising, where 387 doing so flows from "fear" that "people would make bad decisions if given truthful information about compounded drugs." Ante, at 374. This response, however, does not fully explain the Government's regulatory rationale; it fails to take account of considerations that make the claim more than plausible (if properly stated); and it is inconsistent with this Court's interpretation of the Constitution. t is an oversimplification to say that the Government "fear[s]" that doctors or patients "would make bad decisions if given truthful information." Rather, the Government fears the safety consequences of multiple compound-drug prescription decisions initiated not by doctors but by pharmacist-to-patient advertising. Those consequences flow from the adverse cumulative effects of multiple individual decisions each of which may seem perfectly reasonable considered on its own. The Government fears that, taken together, these apparently rational individual decisions will undermine the safety testing system, thereby producing overall a net balance of harm. See, e. g., FDA Reform Legislation 121 (statement of David A. Kessler, Commissioner of the FDA) (voicing concerns about "quality controls" and the integrity of the drug-testing system). Consequently, the Government leaves pharmacists free to explain through advertisements what compounding is, to advertise that they engage in compounding, and to advise patients to discuss the matter with their physicians. And it forbids advertising the specific drug in question, not because it fears the "information" the advertisement provides, but because it fears the systematic effect, insofar as advertisements solicit business, of advertisements that will not fully explain the complicated risks at issue. And this latter fear is more than plausible. See Part do not deny that the statute restricts the circulation of some truthful information. t prevents a pharmacist from including in an advertisement the information that "this pharmacy will compound Drug X." Nonetheless, this Court 388 has not previously held that commercial advertising restrictions automatically violate the First Amendment. Rather, the Court has applied a more flexible test. t has examined the restriction's proportionality, the relation between restriction and objective, the fit between ends and means. n doing so, the Court has asked whether the regulation of commercial speech "directly advances" a "substantial" governmental objective and whether it is "more extensive than is necessary" to achieve those ends. See Central t has done so because it has concluded that, from a constitutional perspective, commercial speech does not warrant application of the Court's strictest speechprotective tests. And it has reached this conclusion in part because restrictions on commercial speech do not often repress individual self-expression; they rarely interfere with the functioning of democratic political processes; and they often reflect a democratically determined governmental decision to regulate a commercial venture in order to protect, for example, the consumer, the public health, individual safety, or the environment. See, e. g., 44 Liquormart, nc. v. Rhode sland, ; L. Tribe, American Constitutional Law ง 12-15, p. 903 (2d ed. 1988) ("[C]ommercial speech doctrine" seeks to accommodate "the right to speak and hear expression about goods and services" with "the right of government to regulate the sales of such goods and services" (emphasis in original)). have explained why believe the statute satisfies this more flexible test. See Parts and The Court, in my view, gives insufficient weight to the Government's regulatory rationale, and too readily assumes the existence of practical alternatives. t thereby applies the commercial speech doctrine too strictly. Cf. Buckman See also llinois Bd. of (warning against overly demanding search for less restrictive alternatives). n my view, the Constitution demands a more lenient application, an application that reflects the need for distinctions among contexts, forms of regulation, and forms of speech, and which, in particular, clearly distinguishes between "commercial speech" and other forms of speech demanding stricter constitutional protection. Otherwise, an overly rigid "commercial speech" doctrine will transform what ought to be a legislative or regulatory decision about the best way to protect the health and safety of the American public into a constitutional decision prohibiting the legislature from enacting necessary protections. As history in respect to the Due Process Clause shows, any such transformation would involve a tragic constitutional misunderstanding. See V Finally, the majority would hold the statute unconstitutional because it prohibits pharmacists from advertising compounded drugs to doctors. Ante, at 376-377. Doctors, however, obtain information about individual drugs through many other channels. And there is no indication that restrictions on commercial advertising have had any negative effect on the flow of this information. See e. g., Contemporary Pharmacy Practice 11.4 (compounded drug information "available" and "widely disseminated" through books, journals, monographs, and vendors). Nor, with one exception, have doctors or groups of doctors complained that the statute will interfere with that flow of information in the future. But see Brief for Julian M. Whitaker, M.D., et al. as Amici Curiae 1 (alleging, without evidentiary support, that the regulations prevent doctors from knowing how to 390 get "competitively priced compounded drugs as efficiently as possble"). Regardless, we here consider a facial attack on the statute. The respondents here focus their attack almost entirely upon consumer-directed advertising. They have not fully addressed separate questions involving the effect of advertising restrictions on information received by physicians. would consequently leave these questions in abeyance. Considering the statute only insofar as it applies to advertising directed at consumers, would hold it constitutional. For these reasons, dissent.	1,999
Justice Rehnquist	majority	false	LaChance v. Erickson	1998-01-21	null	https://www.courtlistener.com/opinion/118163/lachance-v-erickson/	https://www.courtlistener.com/api/rest/v3/clusters/118163/	1,998	1997-017	1	9	0	The question presented by this action is whether either the Due Process Clause or the Civil Service Reform Act of 1978 (CSRA), 5 U.S. C. § 1101 et seq., precludes a federal agency from sanctioning an employee for making false statements to the agency regarding alleged employment-related misconduct on the part of the employee. We hold that they do not. Respondents Walsh, Erickson, Kye, Barrett, Roberts, and McManus are Government employees who were the subject of adverse actions by the various agencies for which they worked. Each employee made false statements to agency investigators with respect to the misconduct with which they were charged. In each case, the agency additionally charged the false statement as a ground for adverse action, and the action taken in each was based in part on the added charge. The employees separately appealed the actions taken against them to the Merit Systems Protection Board (Board). The Board upheld that portion of the penalty based on the underlying charge in each case, but overturned the false statement charge. The Board further held that an employee's false statements could not be used for purposes of impeaching the employee's credibility, nor could they be considered in setting the appropriate punishment for the employee's underlying misconduct. Finally, the Board held that an agency may not charge an employee with failure to report an act of fraud when reporting such fraud would tend to implicate the employee in employment-related misconduct. The Director of the Office of Personnel Management appealed each of these decisions by the Board to the Court of Appeals for the Federal Circuit. In a consolidated appeal involving the cases of Walsh, Erickson, Kye, Barrett, and Roberts, that court agreed with the Board that no penalty could be based on a false denial of the underlying claim. 265 King v. Erickson, 89 F.3d 1575 (1996). Citing the Fifth Amendment's Due Process Clause, the court held that "an agency may not charge an employee with falsification or a similar charge on the ground of the employee's denial of another charge or of underlying facts relating to that other charge," nor may "[d]enials of charges and related facts . . . be considered in determining a penalty." Id. , at 1585. In a separate unpublished decision, judgt. order reported at 92 F.3d 1208 (1996), the Court of Appeals affirmed the Board's reversal of the false statement charge against McManus as well as the Board's conclusion that an employee's "false statements . . . may not be considered" even for purposes of impeachment. McManus v. Department of Justice, 66 MSPR 564, 568 (1995). We granted certiorari in both cases, 521 U.S. 1117 (1997), and now reverse. In Bryson v. United States, 396 U.S. 64 (1969), we said: "Our legal system provides methods for challenging the Government's right to ask questionslying is not one of them. A citizen may decline to answer the question, or answer it honestly, but he cannot with impunity knowingly and willfully answer with a falsehood." Id., at 72 (footnote omitted). We find it impossible to square the result reached by the Court of Appeals in the present case with our holding in Bryson and in other cases of similar import. Title 5 U.S. C. § 7513(a) provides that an agency may impose the sort of penalties involved here "for such cause as will promote the efficiency of the service." It then sets forth four procedural rights accorded to the employee against whom adverse action is proposed. The agency must: (1) give the employee "at least 30 days' advance written notice"; (2) allow the employee "a reasonable time, but not less than 7 days, to answer orally and in writing and to furnish . . . evidence in support of the answer"; (3) permit the employee to "be represented by an attorney or other representative"; and (4) provide the employee 266 with "a written decision and the specific reasons therefor." 5 U.S. C. § 7513(b). In these carefully delineated rights there is no hint of any right to "put the government to its proof" by falsely denying the charged conduct. Such a right, then, if it exists at all, must come from the Fifth Amendment of the United States Constitution. The Fifth Amendment provides that "[n]o person shall . . . be deprived of life, liberty, or property, without due process of law . . . ." The Court of Appeals stated that "it is undisputed that the government employees here had a protected property interest in their employment," 89 F.3d, at 1581, and we assume that to be the case for purposes of our decision. The core of due process is the right to notice and a meaningful opportunity to be heard. Cleveland Bd. of Ed. v. Loudermill, 470 U.S. 532, 542 (1985). But we reject, on the basis of both precedent and principle, the view expressed by the Court of Appeals in this action that a "meaningful opportunity to be heard" includes a right to make false statements with respect to the charged conduct. It is well established that a criminal defendant's right to testify does not include the right to commit perjury. Nix v. Whiteside, 475 U.S. 157, 173 (1986); United States v. Havens, 446 U.S. 620, 626 (1980); United States v. Grayson, 438 U.S. 41, 54 (1978). Indeed, in United States v. Dunnigan, 507 U.S. 87, 97 (1993), we held that a court could, consistent with the Constitution, enhance a criminal defendant's sentence based on a finding that he perjured himself at trial. Witnesses appearing before a grand jury under oath are likewise required to testify truthfully, on pain of being prosecuted for perjury. United States v. Wong, 431 U.S. 174 (1977). There we said that "the predicament of being forced to choose between incriminatory truth and falsehood . . . does not justify perjury." Id. , at 178. Similarly, one who files a 267 false affidavit required by statute may be fined and imprisoned. Dennis v. United States, 384 U.S. 855 (1966). The Court of Appeals sought to distinguish these cases on the ground that the defendants in them had been under oath, while here the respondents were not. The fact that respondents were not under oath, of course, negates a charge of perjury, but that is not the charge brought against them. They were charged with making false statements during the course of an agency investigation, a charge that does not require that the statements be made under oath. While the Court of Appeals would apparently permit the imposition of punishment for the former but not the latter, we fail to see how the presence or absence of an oath is material to the due process inquiry. The Court of Appeals also relied on its fear that if employees were not allowed to make false statements, they might "be coerced into admitting the misconduct, whether they believe that they are guilty or not, in order to avoid the more severe penalty of removal possibly resulting from a falsification charge." App. to Pet. for Cert. 16a17a. But we rejected a similar claim in United States v. Grayson, 438 U.S. 41 (1978). There a sentencing judge took into consideration his belief that the defendant had testified falsely at his trial. The defendant argued before us that such a practice would inhibit the exercise of the right to testify truthfully in the proceeding. We described that contention as "entirely frivolous." Id., at 55. If answering an agency's investigatory question could expose an employee to a criminal prosecution, he may exercise his Fifth Amendment right to remain silent. See Hale v. Henkel, 201 U.S. 43, 67 (1906); United States v. Ward, 448 U.S. 242, 248 (1980). It may well be that an agency, in ascertaining the truth or falsity of the charge, would take into consideration the failure of the employee to respond. See Baxter v. Palmigiano, 425 U.S. 308, 318 (1976) (discussing the "prevailing rule that the Fifth Amendment does not forbid 268 adverse inferences against parties to civil actions when they refuse to testify"). But there is nothing inherently irrational about such an investigative posture. See Konigsberg v. State Bar of Cal., 366 U.S. 36 (1961). For these reasons, we hold that a Government agency may take adverse action against an employee because the employee made false statements in response to an underlying charge of misconduct. The judgments of the Court of Appeals are therefore Reversed.	The question presented by this action is whether either the Due Process Clause or the Civil Service Reform Act of 18 (CSRA), 5 U.S. C. 1101 et seq., precludes a federal agency from sanctioning an employee for making false statements to the agency regarding alleged employment-related misconduct on the part of the employee. We hold that they do not. Respondents Walsh, Erickson, Kye, Barrett, Roberts, and McManus are Government employees who were the subject of adverse actions by the various agencies for which they worked. Each employee made false statements to agency investigators with respect to the misconduct with which they were charged. In each case, the agency additionally charged the false statement as a ground for adverse action, and the action taken in each was based in part on the added charge. The employees separately appealed the actions taken against them to the Merit Systems Protection Board (Board). The Board upheld that portion of the penalty based on the underlying charge in each case, but overturned the false statement charge. The Board further held that an employee's false statements could not be used for purposes of impeaching the employee's credibility, nor could they be considered in setting the appropriate punishment for the employee's underlying misconduct. Finally, the Board held that an agency may not charge an employee with failure to report an act of fraud when reporting such fraud would tend to implicate the employee in employment-related misconduct. The Director of the Office of Personnel Management appealed each of these decisions by the Board to the Court of Appeals for the Federal Circuit. In a consolidated appeal involving the cases of Walsh, Erickson, Kye, Barrett, and Roberts, that court agreed with the Board that no penalty could be based on a false denial of the underlying claim. 265 Citing the Fifth Amendment's Due Process Clause, the court held that "an agency may not charge an employee with falsification or a similar charge on the ground of the employee's denial of another charge or of underlying facts relating to that other charge," nor may "[d]enials of charges and related facts be considered in determining a penalty." at 1585. In a separate unpublished decision, judgt. order reported at the Court of Appeals affirmed the Board's reversal of the false statement charge against McManus as well as the Board's conclusion that an employee's "false statements may not be considered" even for purposes of impeachment. McManus v. Department of Justice, 66 MSPR 564, 568 (1995). We granted certiorari in both cases, and now reverse. In we said: "Our legal system provides methods for challenging the Government's right to ask questionslying is not one of them. A citizen may decline to answer the question, or answer it honestly, but he cannot with impunity knowingly and willfully answer with a falsehood." We find it impossible to square the result reached by the Court of Appeals in the present case with our holding in Bryson and in other cases of similar import. Title 5 U.S. C. 7513(a) provides that an agency may impose the sort of penalties involved here "for such cause as will promote the efficiency of the service." It then sets forth four procedural rights accorded to the employee against whom adverse action is proposed. The agency must: (1) give the employee "at least 30 days' advance written notice"; (2) allow the employee "a reasonable time, but not less than 7 days, to answer orally and in writing and to furnish evidence in support of the answer"; (3) permit the employee to "be represented by an attorney or other representative"; and (4) provide the employee 266 with "a written decision and the specific reasons therefor." 5 U.S. C. 7513(b). In these carefully delineated rights there is no hint of any right to "put the government to its proof" by falsely denying the charged conduct. Such a right, then, if it exists at all, must come from the Fifth Amendment of the United States Constitution. The Fifth Amendment provides that "[n]o person shall be deprived of life, liberty, or property, without due process of law" The Court of Appeals stated that "it is undisputed that the government employees here had a protected property interest in their employment," and we assume that to be the case for purposes of our decision. The core of due process is the right to notice and a meaningful opportunity to be heard. Cleveland Bd. of But we reject, on the basis of both precedent and principle, the view expressed by the Court of Appeals in this action that a "meaningful opportunity to be heard" includes a right to make false statements with respect to the charged conduct. It is well established that a criminal defendant's right to testify does not include the right to commit perjury. ; United ; United Indeed, in United we held that a court could, consistent with the Constitution, enhance a criminal defendant's sentence based on a finding that he perjured himself at trial. Witnesses appearing before a grand jury under oath are likewise required to testify truthfully, on pain of being prosecuted for perjury. United (17). There we said that "the predicament of being forced to choose between incriminatory truth and falsehood does not justify perjury." at 178. Similarly, one who files a *2 false affidavit required by statute may be fined and imprisoned. The Court of Appeals sought to distinguish these cases on the ground that the defendants in them had been under oath, while here the respondents were not. The fact that respondents were not under oath, of course, negates a charge of perjury, but that is not the charge brought against them. They were charged with making false statements during the course of an agency investigation, a charge that does not require that the statements be made under oath. While the Court of Appeals would apparently permit the imposition of punishment for the former but not the latter, we fail to see how the presence or absence of an oath is material to the due process inquiry. The Court of Appeals also relied on its fear that if employees were not allowed to make false statements, they might "be coerced into admitting the misconduct, whether they believe that they are guilty or not, in order to avoid the more severe penalty of removal possibly resulting from a falsification charge." App. to Pet. for Cert. 16a17a. But we rejected a similar claim in United There a sentencing judge took into consideration his belief that the defendant had testified falsely at his trial. The defendant argued before us that such a practice would inhibit the exercise of the right to testify truthfully in the proceeding. We described that contention as "entirely frivolous." If answering an agency's investigatory question could expose an employee to a criminal prosecution, he may exercise his Fifth Amendment right to remain silent. See ; United It may well be that an agency, in ascertaining the truth or falsity of the charge, would take into consideration the failure of the employee to respond. See (16) But there is nothing inherently irrational about such an investigative posture. See For these reasons, we hold that a Government agency may take adverse action against an employee because the employee made false statements in response to an underlying charge of misconduct. The judgments of the Court of Appeals are therefore Reversed.	2,000
Justice Breyer	majority	false	BURLINGTON N. & SFR CO. v. White	2006-06-22	null	https://www.courtlistener.com/opinion/145636/burlington-n-sfr-co-v-white/	https://www.courtlistener.com/api/rest/v3/clusters/145636/	2,006	2005-075	2	9	0	Title VII of the Civil Rights Act of 1964 forbids employ- ment discrimination against "any individual" based on that individual's "race, color, religion, sex, or national origin." Pub. L. 88-352, §704, 78 Stat. 257, as amended, 42 U.S. C. §2000e-2(a). A separate section of the Actits anti-retaliation provisionforbids an employer from "discriminat[ing] against" an employee or job applicant because that individual "opposed any practice" made unlawful by Title VII or "made a charge, testified, as- sisted, or participated in" a Title VII proceeding or inves- tigation. §2000e-3(a). The Courts of Appeals have come to different conclu- sions about the scope of the Act's anti-retaliation provi- sion, particularly the reach of its phrase "discriminate against." Does that provision confine actionable retalia- tion to activity that affects the terms and conditions of employment? And how harmful must the adverse actions be to fall within its scope? We conclude that the anti-retaliation provision does not confine the actions and harms it forbids to those that are related to employment or occur at the workplace. We also conclude that the provision covers those (and only those) employer actions that would have been materially adverse to a reasonable employee or job applicant. In the present context that means that the employer's actions must be harmful to the point that they could well dissuade a rea- sonable worker from making or supporting a charge of discrimination. I A This case arises out of actions that supervisors at peti- tioner Burlington Northern & Santa Fe Railway Company took against respondent Sheila White, the only woman working in the Maintenance of Way department at Bur- lington's Tennessee Yard. In June 1997, Burlington's roadmaster, Marvin Brown, interviewed White and ex- pressed interest in her previous experience operating forklifts. Burlington hired White as a "track laborer," a job that involves removing and replacing track compo- nents, transporting track material, cutting brush, and clearing litter and cargo spillage from the right-of-way. Soon after White arrived on the job, a co-worker who had previously operated the forklift chose to assume other responsibilities. Brown immediately assigned White to operate the forklift. While she also performed some of the other track laborer tasks, operating the forklift was White's primary responsibility. In September 1997, White complained to Burlington officials that her immediate supervisor, Bill Joiner, had repeatedly told her that women should not be working in the Maintenance of Way department. Joiner, White said, had also made insulting and inappropriate remarks to her in front of her male colleagues. After an internal investi- gation, Burlington suspended Joiner for 10 days and ordered him to attend a sexual-harassment training ses- sion. On September 26, Brown told White about Joiner's discipline. At the same time, he told White that he was removing her from forklift duty and assigning her to per- form only standard track laborer tasks. Brown explained that the reassignment reflected co-worker's complaints that, in fairness, a " 'more senior man'" should have the "less arduous and cleaner job" of forklift operator. 364 F.3d 789, 792 (CA6 2004) (case below). On October 10, White filed a complaint with the Equal Employment Opportunity Commission (EEOC or Commis- sion). She claimed that the reassignment of her duties amounted to unlawful gender-based discrimination and retaliation for her having earlier complained about Joiner. In early December, White filed a second retaliation charge with the Commission, claiming that Brown had placed her under surveillance and was monitoring her daily activi- ties. That charge was mailed to Brown on December 8. A few days later, White and her immediate supervisor, Percy Sharkey, disagreed about which truck should trans- port White from one location to another. The specific facts of the disagreement are in dispute, but the upshot is that Sharkey told Brown later that afternoon that White had been insubordinate. Brown immediately suspended White without pay. White invoked internal grievance proce- dures. Those procedures led Burlington to conclude that White had not been insubordinate. Burlington reinstated White to her position and awarded her backpay for the 37 days she was suspended. White filed an additional re- taliation charge with the EEOC based on the suspension. B After exhausting administrative remedies, White filed this Title VII action against Burlington in federal court. As relevant here, she claimed that Burlington's actions (1) changing her job responsibilities, and (2) suspending her for 37 days without payamounted to unlawful re- taliation in violation of Title VII. §2000e-3(a). A jury found in White's favor on both of these claims. It awarded her $43,500 in compensatory damages, including $3,250 in medical expenses. The District Court denied Burlington's post-trial motion for judgment as a matter of law. See Fed. Rule Civ. Proc. 50(b). Initially, a divided Sixth Circuit panel reversed the judgment and found in Burlington's favor on the retalia- tion claims. 310 F.3d 443 (2002). The full Court of Ap- peals vacated the panel's decision, however, and heard the matter en banc. The court then affirmed the District Court's judgment in White's favor on both retaliation claims. While all members of the en banc court voted to uphold the District Court's judgment, they differed as to the proper standard to apply. Compare 364 F.3d, at 795- 800, with id., at 809 (Clay, J., concurring). II Title VII's anti-retaliation provision forbids employer actions that "discriminate against" an employee (or job applicant) because he has "opposed" a practice that Title VII forbids or has "made a charge, testified, assisted, or participated in" a Title VII "investigation, proceeding, or hearing." §2000e-3(a). No one doubts that the term "discriminate against" refers to distinctions or differences in treatment that injure protected individuals. See Jack- son v. Birmingham Bd. of Ed., 544 U.S. 167, 174 (2005); Price Waterhouse v. Hopkins, 490 U.S. 228, 244 (1989) (plurality opinion); see also 4 Oxford English Dictionary 758 (2d ed. 1989) (def. 3b). But different Circuits have come to different conclusions about whether the challenged action has to be employment or workplace related and about how harmful that action must be to constitute retaliation. Some Circuits have insisted upon a close relationship between the retaliatory action and employment. The Sixth Circuit majority in this case, for example, said that a plaintiff must show an "adverse employment action," which it defined as a "materially adverse change in the terms and conditions" of employment. 364 F.3d, at 795 (internal quotation marks omitted). The Sixth Circuit has thus joined those Courts of Appeals that apply the same standard for retaliation that they apply to a substantive discrimination offense, holding that the challenged action must "resul[t] in an adverse effect on the 'terms, condi- tions, or benefits' of employment." Von Gunten v. Mary- land, 243 F.3d 858, 866 (CA4 2001); see Robinson v. Pittsburgh, 120 F.3d 1286, 1300 (CA3 1997). The Fifth and the Eighth Circuits have adopted a more restrictive approach. They employ an "ultimate employment deci- sio[n]" standard, which limits actionable retaliatory con- duct to acts " 'such as hiring, granting leave, discharging, promoting, and compensating.'" Mattern v. Eastman Kodak Co., 104 F.3d 702, 707 (CA5 1997); see Manning v. Metropolitan Life Ins. Co., 127 F.3d 686, 692 (CA8 1997). Other Circuits have not so limited the scope of the pro- vision. The Seventh and the District of Columbia Circuits have said that the plaintiff must show that the "em- ployer's challenged action would have been material to a reasonable employee," which in contexts like the present one means that it would likely have "dissuaded a reason- able worker from making or supporting a charge of dis- crimination." Washington v. Illinois Dept. of Revenue, 420 F.3d 658, 662 (CA7 2005); see Rochon v. Gonzales, 438 F.3d 1211, 1217-1218 (CADC 2006). And the Ninth Circuit, following EEOC guidance, has said that the plain- tiff must simply establish " 'adverse treatment that is based on a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in pro- tected activity.'" Ray v. Henderson, 217 F.3d 1234, 1242- 1243 (CA9 2000). The concurring judges below would have applied this last mentioned standard. 364 F.3d, at 809 (opinion of Clay, J.). We granted certiorari to resolve this disagreement. To do so requires us to decide whether Title VII's anti- retaliation provision forbids only those employer actions and resulting harms that are related to employment or the workplace. And we must characterize how harmful an act of retaliatory discrimination must be in order to fall within the provision's scope. A Petitioner and the Solicitor General both argue that the Sixth Circuit is correct to require a link between the chal- lenged retaliatory action and the terms, conditions, or status of employment. They note that Title VII's substan- tive anti-discrimination provision protects an individual only from employment-related discrimination. They add that the anti-retaliation provision should be read in pari materia with the anti-discrimination provision. And they conclude that the employer actions prohibited by the anti- retaliation provision should similarly be limited to conduct that "affects the employee's 'compensation, terms, condi- tions, or privileges of employment.'" Brief for United States as Amicus Curiae 13 (quoting §2000e-2(a)(1)); see Brief for Petitioner 13 (same). We cannot agree. The language of the substantive provision differs from that of the anti-retaliation provision in important ways. Section 703(a) sets forth Title VII's core anti-discrimination provision in the following terms: "It shall be an unlawful employment practice for an employer "(1) to fail or refuse to hire or to discharge any indi- vidual, or otherwise to discriminate against any indi- vidual with respect to his compensation, terms, condi- tions, or privileges of employment, because of such individual's race, color, religion, sex, or national ori- gin; or "(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employ- ment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin." §2000e- 2(a) (emphasis added). Section 704(a) sets forth Title VII's anti-retaliation provision in the following terms: "It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment . . . because he has op- posed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." §2000e-3(a) (emphasis added). The underscored words in the substantive provision "hire," "discharge," "compensation, terms, conditions, or privileges of employment," "employment opportunities," and "status as an employee"explicitly limit the scope of that provision to actions that affect employment or alter the conditions of the workplace. No such limiting words appear in the anti-retaliation provision. Given these linguistic differences, the question here is not whether identical or similar words should be read in pari materia to mean the same thing. See, e.g., Pasquantino v. United States, 544 U.S. 349, 355, n. 2 (2005); McFarland v. Scott, 512 U.S. 849, 858 (1994); Sullivan v. Everhart, 494 U.S. 83, 92 (1990). Rather, the question is whether Congress in- tended its different words to make a legal difference. We normally presume that, where words differ as they differ here, "'Congress acts intentionally and purposely in the disparate inclusion or exclusion.'" Russello v. United States, 464 U.S. 16, 23 (1983). There is strong reason to believe that Congress intended the differences that its language suggests, for the two provisions differ not only in language but in purpose as well. The anti-discrimination provision seeks a workplace where individuals are not discriminated against because of their racial, ethnic, religious, or gender-based status. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800-801 (1973). The anti-retaliation provision seeks to secure that primary objective by preventing an employer from interfering (through retaliation) with an employee's efforts to secure or advance enforcement of the Act's basic guarantees. The substantive provision seeks to prevent injury to individuals based on who they are, i.e., their status. The anti-retaliation provision seeks to prevent harm to individuals based on what they do, i.e., their conduct. To secure the first objective, Congress did not need to prohibit anything other than employment-related dis- crimination. The substantive provision's basic objective of "equality of employment opportunities" and the elimina- tion of practices that tend to bring about "stratified job environments," id., at 800, would be achieved were all employment-related discrimination miraculously eliminated. But one cannot secure the second objective by focusing only upon employer actions and harm that concern em- ployment and the workplace. Were all such actions and harms eliminated, the anti-retaliation provision's objective would not be achieved. An employer can effectively retali- ate against an employee by taking actions not directly related to his employment or by causing him harm outside the workplace. See, e.g., Rochon v. Gonzales, 438 F. 3d, at 1213 (FBI retaliation against employee "took the form of the FBI's refusal, contrary to policy, to investigate death threats a federal prisoner made against [the agent] and his wife"); Berry v. Stevinson Chevrolet, 74 F.3d 980, 984, 986 (CA10 1996) (finding actionable retaliation where employer filed false criminal charges against former em- ployee who complained about discrimination). A provision limited to employment-related actions would not deter the many forms that effective retaliation can take. Hence, such a limited construction would fail to fully achieve the anti-retaliation provision's "primary purpose," namely, "[m]aintaining unfettered access to statutory remedial mechanisms." Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997). Thus, purpose reinforces what language already indi- cates, namely, that the anti-retaliation provision, unlike the substantive provision, is not limited to discriminatory actions that affect the terms and conditions of employ- ment. Cf. Wachovia Bank, N. A. v. Schmidt, 546 U. S. ___ (2006) (slip op., at 14) (rejecting statutory construction that would "trea[t] venue and subject-matter jurisdiction prescriptions as in pari materia" because doing so would "overloo[k] the discrete offices of those concepts"). Our precedent does not compel a contrary conclusion. Indeed, we have found no case in this Court that offers petitioner or the United States significant support. Bur- lington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), as petitioner notes, speaks of a Title VII requirement that violations involve "tangible employment action" such as "hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision caus- ing a significant change in benefits." Id., at 761. But Ellerth does so only to "identify a class of [hostile work environment] cases" in which an employer should be held vicariously liable (without an affirmative defense) for the acts of supervisors. Id., at 760; see also Pennsylvania State Police v. Suders, 542 U.S. 129, 143 (2004) (explain- ing holdings in Ellerth and Faragher v. Boca Raton, 524 U.S. 775 (1998), as dividing hostile work environment claims into two categories, one in which the employer is strictly liable because a tangible employment action is taken and one in which the employer can make an af- firmative defense). Ellerth did not discuss the scope of the general anti-discrimination provision. See 524 U.S., at 761 (using "concept of a tangible employment action [that] appears in numerous cases in the Courts of Appeals" only "for resolution of the vicarious liability issue"). And Ellerth did not mention Title VII's anti-retaliation provi- sion at all. At most, Ellerth sets forth a standard that petitioner and the Solicitor General believe the anti- retaliation provision ought to contain. But it does not compel acceptance of their view. Nor can we find significant support for their view in the EEOC's interpretations of the provision. We concede that the EEOC stated in its 1991 and 1988 Compliance Manu- als that the anti-retaliation provision is limited to "ad- verse employment-related action." 2 EEOC Compliance Manual §614.1(d), p. 614-5 (1991) (hereinafter EEOC 1991 Manual); EEOC Compliance Manual §614.1(d), p. 614-5 (1988) (hereinafter EEOC 1988 Manual). But in those same manuals the EEOC lists the "[e]ssential [e]lements" of a retaliation claim along with language suggesting a broader interpretation. EEOC 1991 Manual §614.3(d), pp. 614-8 to 614-9 (complainant must show "that (s)he was in some manner subjected to adverse treatment by the respondent because of the protest or opposition"); EEOC 1988 Manual §614.3(d), pp. 614-8 to 614-9 (same). Moreover, both before and after publication of the 1991 and 1988 manuals, the EEOC similarly expressed a broad interpretation of the anti-retaliation provision. Compare EEOC Interpretive Manual, Reference Manual to Title VII Law for Compliance Personnel §491.2 (1972) (hereinafter 1972 Reference Manual) (§704(a) "is intended to provide 'exceptionally broad protection' for protestors of discrimi- natory employment practices"), with 2 EEOC Compliance Manual §8, p. 8-13 (1998) (hereinafter EEOC 1998 Manual), available at http://www.eeoc.gov/policy/docs/ retal.html (as visited June 20, 2006, and available in Clerk of Court's case file) (§704(a) "prohibit[s] any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity"). And the EEOC 1998 Manual, which offers the Commission's only direct state- ment on the question of whether the anti-retaliation pro- vision is limited to the same employment-related activity covered by the anti-discrimination provision, answers that question in the negativedirectly contrary to petitioner's reading of the Act. Ibid. Finally, we do not accept the petitioner's and Solicitor General's view that it is "anomalous" to read the statute to provide broader protection for victims of retaliation than for those whom Title VII primarily seeks to protect, namely, victims of race-based, ethnic-based, religion- based, or gender-based discrimination. Brief for Petitioner 17; Brief for United States as Amicus Curiae 14-15. Congress has provided similar kinds of protection from retaliation in comparable statutes without any judicial suggestion that those provisions are limited to the conduct prohibited by the primary substantive provisions. The National Labor Relations Act, to which this Court has "drawn analogies . . . in other Title VII contexts," Hishon v. King & Spalding, 467 U.S. 69, 76, n. 8 (1984), provides an illustrative example. Compare 29 U.S. C. §158(a)(3) (substantive provision prohibiting employer "discrimina- tion in regard to . . . any term or condition of employment to encourage or discourage membership in any labor or- ganization") with §158(a)(4) (retaliation provision making it unlawful for an employer to "discharge or otherwise discriminate against an employee because he has filed charges or given testimony under this subchapter"); see also Bill Johnson's Restaurants, Inc. v. NLRB, 461 U.S. 731, 740 (1983) (construing anti-retaliation provision to "prohibi[t] a wide variety of employer conduct that is intended to restrain, or that has the likely effect of re- straining, employees in the exercise of protected activi- ties," including the retaliatory filing of a lawsuit against an employee); NLRB v. Scrivener, 405 U.S. 117, 121-122 (1972) (purpose of the anti-retaliation provision is to en- sure that employees are " 'completely free from coercion against reporting'" unlawful practices). In any event, as we have explained, differences in the purpose of the two provisions remove any perceived "anomaly," for they justify this difference of interpretation. See supra, at 8-9. Title VII depends for its enforcement upon the cooperation of employees who are willing to file complaints and act as witnesses. "Plainly, effective en- forcement could thus only be expected if employees felt free to approach officials with their grievances." Mitchell v. Robert DeMario Jewelry, Inc., 361 U.S. 288, 292 (1960). Interpreting the anti-retaliation provision to provide broad protection from retaliation helps assure the cooperation upon which accomplishment of the Act's primary objective depends. For these reasons, we conclude that Title VII's substan- tive provision and its anti-retaliation provision are not coterminous. The scope of the anti-retaliation provision extends beyond workplace-related or employment-related retaliatory acts and harm. We therefore reject the stan- dards applied in the Courts of Appeals that have treated the anti-retaliation provision as forbidding the same con- duct prohibited by the anti-discrimination provision and that have limited actionable retaliation to so-called "ulti- mate employment decisions." See supra, at 5. B The anti-retaliation provision protects an individual not from all retaliation, but from retaliation that produces an injury or harm. As we have explained, the Courts of Ap- peals have used differing language to describe the level of seriousness to which this harm must rise before it becomes actionable retaliation. We agree with the formulation set forth by the Seventh and the District of Columbia Circuits. In our view, a plaintiff must show that a reasonable em- ployee would have found the challenged action materially adverse, "which in this context means it well might have 'dissuaded a reasonable worker from making or supporting a charge of discrimination.'" Rochon, 438 F. 3d, at 1219 (quoting Washington, 420 F. 3d, at 662). We speak of material adversity because we believe it is important to separate significant from trivial harms. Title VII, we have said, does not set forth "a general civility code for the American workplace." Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 80 (1998); see Faragher, 524 U. S., at 788 (judicial standards for sexual harassment must "filter out complaints attacking 'the ordinary tribulations of the workplace, such as the spo- radic use of abusive language, gender-related jokes, and occasional teasing'"). An employee's decision to report discriminatory behavior cannot immunize that employee from those petty slights or minor annoyances that often take place at work and that all employees experience. See 1 B. Lindemann & P. Grossman, Employment Discrimina- tion Law 669 (3d ed. 1996) (noting that "courts have held that personality conflicts at work that generate antipathy" and " 'snubbing' by supervisors and co-workers" are not actionable under §704(a)). The anti-retaliation provision seeks to prevent employer interference with "unfettered access" to Title VII's remedial mechanisms. Robinson, 519 U. S., at 346. It does so by prohibiting employer actions that are likely "to deter victims of discrimination from complaining to the EEOC," the courts, and their employ- ers. Ibid. And normally petty slights, minor annoyances, and simple lack of good manners will not create such deterrence. See 2 EEOC 1998 Manual §8, p. 8-13. We refer to reactions of a reasonable employee because we believe that the provision's standard for judging harm must be objective. An objective standard is judicially administrable. It avoids the uncertainties and unfair discrepancies that can plague a judicial effort to determine a plaintiff's unusual subjective feelings. We have empha- sized the need for objective standards in other Title VII contexts, and those same concerns animate our decision here. See, e.g., Suders, 542 U. S., at 141 (constructive discharge doctrine); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993) (hostile work environment doctrine). We phrase the standard in general terms because the significance of any given act of retaliation will often de- pend upon the particular circumstances. Context matters. "The real social impact of workplace behavior often de- pends on a constellation of surrounding circumstances, expectations, and relationships which are not fully cap- tured by a simple recitation of the words used or the physical acts performed." Oncale, supra, at 81-82. A schedule change in an employee's work schedule may make little difference to many workers, but may matter enormously to a young mother with school age children. Cf., e.g., Washington, supra, at 662 (finding flex-time schedule critical to employee with disabled child). A su- pervisor's refusal to invite an employee to lunch is nor- mally trivial, a nonactionable petty slight. But to retaliate by excluding an employee from a weekly training lunch that contributes significantly to the employee's profes- sional advancement might well deter a reasonable em- ployee from complaining about discrimination. See 2 EEOC 1998 Manual §8, p. 8-14. Hence, a legal standard that speaks in general terms rather than specific prohib- ited acts is preferable, for an "act that would be immate- rial in some situations is material in others." Washington, supra, at 661. Finally, we note that contrary to the claim of the con- currence, this standard does not require a reviewing court or jury to consider "the nature of the discrimination that led to the filing of the charge." Post, at 6 (ALITO, J., con- curring in judgment). Rather, the standard is tied to the challenged retaliatory act, not the underlying conduct that forms the basis of the Title VII complaint. By focusing on the materiality of the challenged action and the perspec- tive of a reasonable person in the plaintiff's position, we believe this standard will screen out trivial conduct while effectively capturing those acts that are likely to dissuade employees from complaining or assisting in complaints about discrimination. III Applying this standard to the facts of this case, we believe that there was a sufficient evidentiary basis to support the jury's verdict on White's retaliation claim. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150-151 (2000). The jury found that two of Burling- ton's actions amounted to retaliation: the reassignment of White from forklift duty to standard track laborer tasks and the 37-day suspension without pay. Burlington does not question the jury's determination that the motivation for these acts was retaliatory. But it does question the statutory significance of the harm these acts caused. The District Court instructed the jury to determine whether respondent "suffered a materially adverse change in the terms or conditions of her employ- ment," App. 63, and the Sixth Circuit upheld the jury's finding based on that same stringent interpretation of the anti-retaliation provision (the interpretation that limits §704 to the same employment-related conduct forbidden by §703). Our holding today makes clear that the jury was not required to find that the challenged actions were related to the terms or conditions of employment. And insofar as the jury also found that the actions were "mate- rially adverse," its findings are adequately supported. First, Burlington argues that a reassignment of duties cannot constitute retaliatory discrimination where, as here, both the former and present duties fall within the same job description. Brief for Petitioner 24-25. We do not see why that is so. Almost every job category involves some responsibilities and duties that are less desirable than others. Common sense suggests that one good way to discourage an employee such as White from bringing discrimination charges would be to insist that she spend more time performing the more arduous duties and less time performing those that are easier or more agreeable. That is presumably why the EEOC has consistently found "[r]etaliatory work assignments" to be a classic and "widely recognized" example of "forbidden retaliation." 2 EEOC 1991 Manual §614.7, pp. 614-31 to 614-32; see also 1972 Reference Manual §495.2 (noting Commission deci- sion involving an employer's ordering an employee "to do an unpleasant work assignment in retaliation" for filing racial discrimination complaint); EEOC Dec. No. 74-77, 1974 WL 3847, *4 (Jan. 18, 1974) ("Employers have been enjoined" under Title VII "from imposing unpleasant work assignments upon an employee for filing charges"). To be sure, reassignment of job duties is not automati- cally actionable. Whether a particular reassignment is materially adverse depends upon the circumstances of the particular case, and "should be judged from the perspec- tive of a reasonable person in the plaintiff's position, considering 'all the circumstances.'" Oncale, 523 U. S., at 81. But here, the jury had before it considerable evidence that the track labor duties were "by all accounts more arduous and dirtier"; that the "forklift operator position required more qualifications, which is an indication of prestige"; and that "the forklift operator position was objectively considered a better job and the male employees resented White for occupying it." 364 F.3d, at 803 (inter- nal quotation marks omitted). Based on this record, a jury could reasonably conclude that the reassignment of re- sponsibilities would have been materially adverse to a reasonable employee. Second, Burlington argues that the 37-day suspension without pay lacked statutory significance because Burling- ton ultimately reinstated White with backpay. Burlington says that "it defies reason to believe that Congress would have considered a rescinded investigatory suspension with full back pay" to be unlawful, particularly because Title VII, throughout much of its history, provided no relief in an equitable action for victims in White's position. Brief for Petitioner 36. We do not find Burlington's last mentioned reference to the nature of Title VII's remedies convincing. After all, throughout its history, Title VII has provided for injunc- tions to "bar like discrimination in the future," Albemarle Paper Co. v. Moody, 422 U.S. 405, 418 (1975) (internal quotation marks omitted), an important form of relief. Pub. L. 88-352, §706(g), 78 Stat. 261, as amended, 42 U.S. C. §2000e-5(g). And we have no reason to believe that a court could not have issued an injunction where an employer suspended an employee for retaliatory purposes, even if that employer later provided backpay. In any event, Congress amended Title VII in 1991 to permit victims of intentional discrimination to recover compensa- tory (as White received here) and punitive damages, con- cluding that the additional remedies were necessary to " 'help make victims whole.'" West v. Gibson, 527 U.S. 212, 219 (1999) (quoting H. R. Rep. No. 102-40, pt. 1, pp. 64-65 (1991)); see 42 U.S. C. §§1981a(a)(1), (b). We would undermine the significance of that congressional judgment were we to conclude that employers could avoid liability in these circumstances. Neither do we find convincing any claim of insufficient evidence. White did receive backpay. But White and her family had to live for 37 days without income. They did not know during that time whether or when White could return to work. Many reasonable employees would find a month without a paycheck to be a serious hardship. And White described to the jury the physical and emotional hardship that 37 days of having "no income, no money" in fact caused. 1 Tr. 154 ("That was the worst Christmas I had out of my life. No income, no money, and that made all of us feel bad. . . . I got very depressed"). Indeed, she obtained medical treatment for her emotional distress. A reasonable employee facing the choice between retaining her job (and paycheck) and filing a discrimination com- plaint might well choose the former. That is to say, an indefinite suspension without pay could well act as a deterrent, even if the suspended employee eventually received backpay. Cf. Mitchell, 361 U. S., at 292 ("[I]t needs no argument to show that fear of economic retalia- tion might often operate to induce aggrieved employees quietly to accept substandard conditions"). Thus, the jury's conclusion that the 37-day suspension without pay was materially adverse was a reasonable one. IV For these reasons, the judgment of the Court of Appeals is affirmed. It is so ordered. JUSTICE ALITO, concurring in the judgment.	Title VII of the Civil Rights Act of 1964 forbids employ- ment discrimination against "any individual" based on that individual's "race, color, religion, sex, or national origin." as amended, 42 U.S. C. A separate section of the Actits anti-retaliation provisionforbids an employer from "discriminat[ing] against" an employee or job applicant because that individual "opposed any practice" made unlawful by Title VII or "made a charge, testified, as- sisted, or participated in" a Title VII proceeding or inves- tigation. The Courts of Appeals have come to different conclu- sions about the scope of the Act's anti-retaliation provi- sion, particularly the reach of its phrase "discriminate against." Does that provision confine actionable retalia- tion to activity that affects the terms and conditions of employment? And how harmful must the adverse actions be to fall within its scope? We conclude that the anti-retaliation provision does not confine the actions and harms it forbids to those that are related to employment or occur at the workplace. We also conclude that the provision covers those (and only those) employer actions that would have been materially adverse to a reasonable employee or job applicant. In the present context that means that the employer's actions must be harmful to the point that they could well dissuade a rea- sonable worker from making or supporting a charge of discrimination. I A This case arises out of actions that supervisors at peti- tioner Burlington Northern & Santa Fe Railway Company took against respondent Sheila White, the only woman working in the Maintenance of Way department at Bur- lington's Tennessee Yard. In June Burlington's roadmaster, Marvin Brown, interviewed White and ex- pressed interest in her previous experience operating forklifts. Burlington hired White as a "track laborer," a job that involves removing and replacing track compo- nents, transporting track material, cutting brush, and clearing litter and cargo spillage from the right-of-way. Soon after White arrived on the job, a co-worker who had previously operated the forklift chose to assume other responsibilities. Brown immediately assigned White to operate the forklift. While she also performed some of the other track laborer tasks, operating the forklift was White's primary responsibility. In September White complained to Burlington officials that her immediate supervisor, Bill Joiner, had repeatedly told her that women should not be working in the Maintenance of Way department. Joiner, White said, had also made insulting and inappropriate remarks to her in front of her male colleagues. After an internal investi- gation, Burlington suspended Joiner for 10 days and ordered him to attend a sexual-harassment training ses- sion. On September 26, Brown told White about Joiner's discipline. At the same time, he told White that he was removing her from forklift duty and assigning her to per- form only standard track laborer tasks. Brown explained that the reassignment reflected co-worker's complaints that, in fairness, a " 'more senior man'" should have the "less arduous and cleaner job" of forklift operator. On October 10, White filed a complaint with the Equal Employment Opportunity Commission (EEOC or Commis- sion). She claimed that the reassignment of her duties amounted to unlawful gender-based discrimination and retaliation for her having earlier complained about Joiner. In early December, White filed a second retaliation charge with the Commission, claiming that Brown had placed her under surveillance and was monitoring her daily activi- ties. That charge was mailed to Brown on December 8. A few days later, White and her immediate supervisor, Percy Sharkey, disagreed about which truck should trans- port White from one location to another. The specific facts of the disagreement are in dispute, but the upshot is that Sharkey told Brown later that afternoon that White had been insubordinate. Brown immediately suspended White without pay. White invoked internal grievance proce- dures. Those procedures led Burlington to conclude that White had not been insubordinate. Burlington reinstated White to her position and awarded her backpay for the 37 days she was suspended. White filed an additional re- taliation charge with the EEOC based on the suspension. B After exhausting administrative remedies, White filed this Title VII action against Burlington in federal court. As relevant here, she claimed that Burlington's actions (1) changing her job responsibilities, and (2) suspending her for 37 days without payamounted to unlawful re- taliation in violation of Title VII. A jury found in White's favor on both of these claims. It awarded her $43,500 in compensatory damages, including $3,250 in medical expenses. The District Court denied Burlington's post-trial motion for judgment as a matter of law. See Fed. Rule Civ. Proc. 50(b). Initially, a divided Sixth Circuit panel reversed the judgment and found in Burlington's favor on the retalia- tion claims. The full Court of Ap- peals vacated the panel's decision, however, and heard the matter en banc. The court then affirmed the District Court's judgment in White's favor on both retaliation claims. While all members of the en banc court voted to uphold the District Court's judgment, they differed as to the proper standard to apply. - 0, with II Title VII's anti-retaliation provision forbids employer actions that "discriminate against" an employee (or job applicant) because he has "opposed" a practice that Title VII forbids or has "made a charge, testified, assisted, or participated in" a Title VII "investigation, proceeding, or hearing." No one doubts that the term "discriminate against" refers to distinctions or differences in treatment that injure protected individuals. See Jack- ; Price ; see also 4 Oxford English Dictionary 758 (def. 3b). But different Circuits have come to different conclusions about whether the challenged action has to be employment or workplace related and about how harmful that action must be to constitute retaliation. Some Circuits have insisted upon a close relationship between the retaliatory action and employment. The Sixth Circuit majority in this case, for example, said that a plaintiff must show an "adverse employment action," which it defined as a "materially adverse change in the terms and conditions" of employment. The Sixth Circuit has thus joined those Courts of Appeals that apply the same standard for retaliation that they apply to a substantive discrimination offense, holding that the challenged action must "resul[t] in an adverse effect on the 'terms, condi- tions, or benefits' of employment." Von ; see The Fifth and the Eighth Circuits have adopted a more restrictive approach. They employ an "ultimate employment deci- sio[n]" standard, which limits actionable retaliatory con- duct to acts " 'such as hiring, granting leave, discharging, promoting, and compensating.'" ; see Other Circuits have not so limited the scope of the pro- vision. The Seventh and the District of Columbia Circuits have said that the plaintiff must show that the "em- ployer's challenged action would have been material to a reasonable employee," which in contexts like the present one means that it would likely have "dissuaded a reason- able worker from making or supporting a charge of dis- crimination." ; see And the Ninth Circuit, following EEOC guidance, has said that the plain- tiff must simply establish " 'adverse treatment that is based on a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in pro- tected activity.'" The concurring judges below would have applied this last mentioned 364 F.3d, We granted certiorari to resolve this disagreement. To do so requires us to decide whether Title VII's anti- retaliation provision forbids only those employer actions and resulting harms that are related to employment or the workplace. And we must characterize how harmful an act of retaliatory discrimination must be in order to fall within the provision's scope. A Petitioner and the Solicitor General both argue that the Sixth Circuit is correct to require a link between the chal- lenged retaliatory action and the terms, conditions, or status of employment. They note that Title VII's substan- tive anti-discrimination provision protects an individual only from employment-related discrimination. They add that the anti-retaliation provision should be read in pari materia with the anti-discrimination provision. And they conclude that the employer actions prohibited by the anti- retaliation provision should similarly be limited to conduct that "affects the employee's 'compensation, terms, condi- tions, or privileges of employment.'" Brief for United States as Amicus Curiae 13 (quoting §e-2(a)(1)); see Brief for Petitioner 13 (same). We cannot agree. The language of the substantive provision differs from that of the anti-retaliation provision in important ways. Section 703(a) sets forth Title VII's core anti-discrimination provision in the following terms: "It shall be an unlawful employment practice for an employer "(1) to fail or refuse to hire or to discharge any indi- vidual, or otherwise to discriminate against any indi- vidual with respect to his compensation, terms, condi- tions, or privileges of employment, because of such individual's race, color, religion, sex, or national ori- gin; or "(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employ- ment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin." §e- 2(a) (emphasis added). Section 704(a) sets forth Title VII's anti-retaliation provision in the following terms: "It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment because he has op- posed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." §e-3(a) (emphasis added). The underscored words in the substantive provision "hire," "discharge," "compensation, terms, conditions, or privileges of employment," "employment opportunities," and "status as an employee"explicitly limit the scope of that provision to actions that affect employment or alter the conditions of the workplace. No such limiting words appear in the anti-retaliation provision. Given these linguistic differences, the question here is not whether identical or similar words should be read in pari materia to mean the same thing. See, e.g., ; ; Rather, the question is whether Congress in- tended its different words to make a legal difference. We normally presume that, where words differ as they differ here, "'Congress acts intentionally and purposely in the disparate inclusion or exclusion.'" There is strong reason to believe that Congress intended the differences that its language suggests, for the two provisions differ not only in language but in purpose as well. The anti-discrimination provision seeks a workplace where individuals are not discriminated against because of their racial, ethnic, religious, or gender-based status. See McDonnell Douglas 411 U.S. The anti-retaliation provision seeks to secure that primary objective by preventing an employer from interfering (through retaliation) with an employee's efforts to secure or advance enforcement of the Act's basic guarantees. The substantive provision seeks to prevent injury to individuals based on who they are, i.e., their status. The anti-retaliation provision seeks to prevent harm to individuals based on what they do, i.e., their conduct. To secure the first objective, Congress did not need to prohibit anything other than employment-related dis- crimination. The substantive provision's basic objective of "equality of employment opportunities" and the elimina- tion of practices that tend to bring about "stratified job environments," would be achieved were all employment-related discrimination miraculously eliminated. But one cannot secure the second objective by focusing only upon employer actions and harm that concern em- ployment and the workplace. Were all such actions and harms eliminated, the anti-retaliation provision's objective would not be achieved. An employer can effectively retali- ate against an employee by taking actions not directly related to his employment or by causing him harm outside the workplace. See, e.g., ; A provision limited to employment-related actions would not deter the many forms that effective retaliation can take. Hence, such a limited construction would fail to fully achieve the anti-retaliation provision's "primary purpose," namely, "[m]aintaining unfettered access to statutory remedial mechanisms." Thus, purpose reinforces what language already indi- cates, namely, that the anti-retaliation provision, unlike the substantive provision, is not limited to discriminatory actions that affect the terms and conditions of employ- ment. Cf. Wachovia Bank, N. A. v. Schmidt, 546 U. S. (slip op., at 14) (rejecting statutory construction that would "trea[t] venue and subject-matter jurisdiction prescriptions as in pari materia" because doing so would "overloo[k] the discrete offices of those concepts"). Our precedent does not compel a contrary conclusion. Indeed, we have found no case in this Court that offers petitioner or the United States significant support. Bur- lington Industries, as petitioner notes, speaks of a Title VII requirement that violations involve "tangible employment action" such as "hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision caus- ing a significant change in benefits." But Ellerth does so only to "identify a class of [hostile work environment] cases" in which an employer should be held vicariously liable (without an affirmative defense) for the acts of supervisors. ; see also Pennsylvania State as dividing hostile work environment claims into two categories, one in which the employer is strictly liable because a tangible employment action is taken and one in which the employer can make an af- firmative defense). Ellerth did not discuss the scope of the general anti-discrimination provision. See 524 U.S., And Ellerth did not mention Title VII's anti-retaliation provi- sion at all. At most, Ellerth sets forth a standard that petitioner and the Solicitor General believe the anti- retaliation provision ought to contain. But it does not compel acceptance of their view. Nor can we find significant support for their view in the EEOC's interpretations of the provision. We concede that the EEOC stated in its 1991 and 1988 Compliance Manu- als that the anti-retaliation provision is limited to "ad- verse employment-related action." 2 EEOC Compliance Manual p. 614-5 (1991) (hereinafter EEOC 1991 Manual); EEOC Compliance Manual p. 614-5 (1988) (hereinafter EEOC 1988 Manual). But in those same manuals the EEOC lists the "[e]ssential [e]lements" of a retaliation claim along with language suggesting a broader interpretation. EEOC 1991 Manual pp. 614-8 to 614-9 (complainant must show "that (s)he was in some manner subjected to adverse treatment by the respondent because of the protest or opposition"); EEOC 1988 Manual pp. 614-8 to 614-9 (same). Moreover, both before and after publication of the 1991 and 1988 manuals, the EEOC similarly expressed a broad interpretation of the anti-retaliation provision. EEOC Interpretive Manual, Reference Manual to Title VII Law for Compliance Personnel (hereinafter 1972 Reference Manual) "is intended to provide 'exceptionally broad protection' for protestors of discrimi- natory employment practices"), with 2 EEOC Compliance Manual p. 8-13 (hereinafter EEOC 1998 Manual), available at http://www.eeoc.gov/policy/docs/ retal.html (as visited June 20, and available in Clerk of Court's case file) "prohibit[s] any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity"). And the EEOC 1998 Manual, which offers the Commission's only direct state- ment on the question of whether the anti-retaliation pro- vision is limited to the same employment-related activity covered by the anti-discrimination provision, answers that question in the negativedirectly contrary to petitioner's reading of the Act. Finally, we do not accept the petitioner's and Solicitor General's view that it is "anomalous" to read the statute to provide broader protection for victims of retaliation than for those whom Title VII primarily seeks to protect, namely, victims of race-based, ethnic-based, religion- based, or gender-based discrimination. Brief for Petitioner 17; Brief for United States as Amicus Curiae 14-15. Congress has provided similar kinds of protection from retaliation in comparable statutes without any judicial suggestion that those provisions are limited to the conduct prohibited by the primary substantive provisions. The National Labor Relations Act, to which this Court has "drawn analogies in other Title VII contexts," provides an illustrative example. 29 U.S. C. (substantive provision prohibiting employer "discrimina- tion in regard to any term or condition of employment to encourage or discourage membership in any labor or- ganization") with (retaliation provision making it unlawful for an employer to "discharge or otherwise discriminate against an employee because he has filed charges or given testimony under this subchapter"); see also Bill Johnson's Restaurants, ; In any event, as we have explained, differences in the purpose of the two provisions remove any perceived "anomaly," for they justify this difference of interpretation. See Title VII depends for its enforcement upon the cooperation of employees who are willing to file complaints and act as witnesses. "Plainly, effective en- forcement could thus only be expected if employees felt free to approach officials with their grievances." 2 Interpreting the anti-retaliation provision to provide broad protection from retaliation helps assure the cooperation upon which accomplishment of the Act's primary objective depends. For these reasons, we conclude that Title VII's substan- tive provision and its anti-retaliation provision are not coterminous. The scope of the anti-retaliation provision extends beyond workplace-related or employment-related retaliatory acts and harm. We therefore reject the stan- dards applied in the Courts of Appeals that have treated the anti-retaliation provision as forbidding the same con- duct prohibited by the anti-discrimination provision and that have limited actionable retaliation to so-called "ulti- mate employment decisions." See B The anti-retaliation provision protects an individual not from all retaliation, but from retaliation that produces an injury or harm. As we have explained, the Courts of Ap- peals have used differing language to describe the level of seriousness to which this harm must rise before it becomes actionable retaliation. We agree with the formulation set forth by the Seventh and the District of Columbia Circuits. In our view, a plaintiff must show that a reasonable em- ployee would have found the challenged action materially adverse, "which in this context means it well might have 'dissuaded a reasonable worker from making or supporting a charge of discrimination.'" Rochon, (quoting 420 F. 3d, at ). We speak of material adversity because we believe it is important to separate significant from trivial harms. Title VII, we have said, does not set forth "a general civility code for the American workplace." 5 U.S. 75, ; see An employee's decision to report discriminatory behavior cannot immunize that employee from those petty slights or minor annoyances that often take place at work and that all employees experience. See 1 B. Lindemann & P. Grossman, Employment Discrimina- tion Law 669 We phrase the standard in general terms because the significance of any given act of retaliation will often de- pend upon the particular circumstances. Context matters. "The real social impact of workplace behavior often de- pends on a constellation of surrounding circumstances, expectations, and relationships which are not fully cap- tured by a simple recitation of the words used or the physical acts performed." A schedule change in an employee's work schedule may make little difference to many workers, but may matter enormously to a young mother with school age children. Cf., e.g., at A su- pervisor's refusal to invite an employee to lunch is nor- mally trivial, a nonactionable petty slight. But to retaliate by excluding an employee from a weekly training lunch that contributes significantly to the employee's profes- sional advancement might well deter a reasonable em- ployee from complaining about discrimination. See 2 EEOC 1998 Manual p. 8-14. Hence, a legal standard that speaks in general terms rather than specific prohib- ited acts is preferable, for an "act that would be immate- rial in some situations is material in others." Finally, we note that contrary to the claim of the con- currence, this standard does not require a reviewing court or jury to consider "the nature of the discrimination that led to the filing of the charge." Post, at 6 (ALITO, J., con- curring in judgment). Rather, the standard is tied to the challenged retaliatory act, not the underlying conduct that forms the basis of the Title VII complaint. By focusing on the materiality of the challenged action and the perspec- tive of a reasonable person in the plaintiff's position, we believe this standard will screen out trivial conduct while effectively capturing those acts that are likely to dissuade employees from complaining or assisting in complaints about discrimination. III Applying this standard to the facts of this case, we believe that there was a sufficient evidentiary basis to support the jury's verdict on White's retaliation claim. See The jury found that two of Burling- ton's actions amounted to retaliation: the reassignment of White from forklift duty to standard track laborer tasks and the 37-day suspension without pay. Burlington does not question the jury's determination that the motivation for these acts was retaliatory. But it does question the statutory significance of the harm these acts caused. The District Court instructed the jury to determine whether respondent "suffered a materially adverse change in the terms or conditions of her employ- ment," App. 63, and the Sixth Circuit upheld the jury's finding based on that same stringent interpretation of the anti-retaliation provision (the interpretation that limits to the same employment-related conduct forbidden by Our holding today makes clear that the jury was not required to find that the challenged actions were related to the terms or conditions of employment. And insofar as the jury also found that the actions were "mate- rially adverse," its findings are adequately supported. First, Burlington argues that a reassignment of duties cannot constitute retaliatory discrimination where, as here, both the former and present duties fall within the same job description. Brief for Petitioner 24-25. We do not see why that is so. Almost every job category involves some responsibilities and duties that are less desirable than others. Common sense suggests that one good way to discourage an employee such as White from bringing discrimination charges would be to insist that she spend more time performing the more arduous duties and less time performing those that are easier or more agreeable. That is presumably why the EEOC has consistently found "[r]etaliatory work assignments" to be a classic and "widely recognized" example of "forbidden retaliation." 2 EEOC 1991 Manual pp. 614-31 to 614-32; see also 1972 Reference Manual (noting Commission deci- sion involving an employer's ordering an employee "to do an unpleasant work assignment in retaliation" for filing racial discrimination complaint); EEOC Dec. No. 74-77, To be sure, reassignment of job duties is not automati- cally actionable. Whether a particular reassignment is materially adverse depends upon the circumstances of the particular case, and "should be judged from the perspec- tive of a reasonable person in the plaintiff's position, considering 'all the circumstances.'" 5 U. S., at 81. But here, the jury had before it considerable evidence that the track labor duties were "by all accounts more arduous and dirtier"; that the "forklift operator position required more qualifications, which is an indication of prestige"; and that "the forklift operator position was objectively considered a better job and the male employees resented White for occupying it." 364 F.3d, at 3 Based on this record, a jury could reasonably conclude that the reassignment of re- sponsibilities would have been materially adverse to a reasonable employee. Second, Burlington argues that the 37-day suspension without pay lacked statutory significance because Burling- ton ultimately reinstated White with backpay. Burlington says that "it defies reason to believe that Congress would have considered a rescinded investigatory suspension with full back pay" to be unlawful, particularly because Title VII, throughout much of its history, provided no relief in an equitable action for victims in White's position. Brief for Petitioner 36. We do not find Burlington's last mentioned reference to the nature of Title VII's remedies convincing. After all, throughout its history, Title VII has provided for injunc- tions to "bar like discrimination in the future," Albemarle Paper an important form of relief. (g), as amended, 42 U.S. C. §e-5(g). And we have no reason to believe that a court could not have issued an injunction where an employer suspended an employee for retaliatory purposes, even if that employer later provided backpay. In any event, Congress amended Title VII in 1991 to permit victims of intentional discrimination to recover compensa- tory (as White received here) and punitive damages, con- cluding that the additional remedies were necessary to " 'help make victims whole.'" 527 U.S. 2, 9 ; see 42 U.S. C. (b). We would undermine the significance of that congressional judgment were we to conclude that employers could avoid liability in these circumstances. Neither do we find convincing any claim of insufficient evidence. White did receive backpay. But White and her family had to live for 37 days without income. They did not know during that time whether or when White could return to work. Many reasonable employees would find a month without a paycheck to be a serious hardship. And White described to the jury the physical and emotional hardship that 37 days of having "no income, no money" in fact caused. 1 Tr. 154 ("That was the worst Christmas I had out of my life. No income, no money, and that made all of us feel bad. I got very depressed"). Indeed, she obtained medical treatment for her emotional distress. A reasonable employee facing the choice between retaining her job (and paycheck) and filing a discrimination com- plaint might well choose the former. That is to say, an indefinite suspension without pay could well act as a deterrent, even if the suspended employee eventually received backpay. Cf. Mitchell, 361 U. S., at 2 Thus, the jury's conclusion that the 37-day suspension without pay was materially adverse was a reasonable one. IV For these reasons, the judgment of the Court of Appeals is affirmed. It is so ordered. JUSTICE ALITO, concurring in the judgment.	2,022
Justice Alito	concurring	false	BURLINGTON N. & SFR CO. v. White	2006-06-22	null	https://www.courtlistener.com/opinion/145636/burlington-n-sfr-co-v-white/	https://www.courtlistener.com/api/rest/v3/clusters/145636/	2,006	2005-075	2	9	0	I concur in the judgment, but I disagree with the major- ity's interpretation of the antiretaliation provision of Title VII of the Civil Rights Act of 1964, 78 Stat. 257, §704(a), as amended, 42 U.S. C. §2000e-3(a). The majority's interpretation has no basis in the statutory language and will, I fear, lead to practical problems. I Two provisions of Title VII are important here. Section 703(a) prohibits a broad range of discriminatory employ- ment practices.[1] Among other things, §703(a) makes it unlawful for an employer "to discriminate against any individual with respect to his compensation, terms, condi- tions, or privileges of employment, because of such indi- vidual's race, color, religion, sex, or national origin." 42 U.S. C. §2000e-2(a)(1) (emphasis added). A complementary and closely related provision, §704(a), makes it unlawful to "discriminate against" an employee for retaliatory purposes. Section 704(a) states in pertinent part: "It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment . . . because he has op- posed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." 42 U.S. C. §2000e-3(a) (em- phasis added). In this case, we must ascertain the meaning of the term "discriminate" in §704(a). Two possible interpretations are suggested by the language of §§703(a) and 704(a). The first is the interpretation that immediately springs to mind if §704(a) is read by itselfi.e., that the term "discriminate" in §704(a) means what the term literally means, to treat differently. Respondent staunchly defends this interpretation, which the majority does not embrace, but this interpretation presents problems that are at least sufficient to raise doubts about its correctness. Respon- dent's interpretation makes §703(a) narrower in scope than §704(a) and thus implies that the persons whom Title VII is principally designed to protectvictims of discrimi- nation based on race, color, sex, national origin, or relig- ionreceive less protection than victims of retaliation. In addition, respondent's interpretation "makes a federal case" out of any small difference in the way an employee who has engaged in protected conduct is treated. On respondent's view, a retaliation claim must go to the jury if the employee creates a genuine issue on such questions as whether the employee was given any more or less work than others, was subjected to any more or less supervision, or was treated in a somewhat less friendly manner be- cause of his protected activity. There is reason to doubt that Congress meant to burden the federal courts with claims involving relatively trivial differences in treatment. See Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 81 (1998); Faragher v. Boca Raton, 524 U.S. 775, 786- 788 (1998). The other plausible interpretation, and the one I favor, reads §§703(a) and 704(a) together. Under this reading, "discriminat[ion]" under §704(a) means the discriminatory acts reached by §703(a)chiefly, discrimination "with respect to . . . compensation, terms, conditions, or privi- leges of employment." This is not, admittedly, the most straightforward reading of the bare language of §704(a), but it is a reasonable reading that harmonizes §§703(a) and 704(a). It also provides an objective standard that permits insignificant claims to be weeded out at the sum- mary judgment stage, while providing ample protection for employees who are subjected to real retaliation. The Courts of Appeals that have interpreted §704(a) in this way state that it requires a materially adverse em- ployment action. See, e.g., Von Gunten v. Maryland, 243 F.3d 858, 865 (CA4 2001); Gupta v. Florida Bd. of Re- gents, 212 F.3d 571, 587 (CA11 2000), cert. denied, 531 U.S. 1076 (2001); Robinson v. Pittsburgh, 120 F.3d 1286, 1300 (CA3 1997). In Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 761-762 (1998), we "import[ed]" this test for use in a different contextto define the term "tangible employment action," a concept we used to limit an em- ployer's liability for harassment carried out by its supervi- sors. We explained that "[a] tangible employment action constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Id., at 761. II The majority does not adopt either of the two interpreta- tions noted above. In Part IIA of its opinion, the majority criticizes the interpretation that harmonizes §§703(a) and 704(a) as not sufficiently faithful to the language of §704(a). Although we found the materially adverse em- ployment action test worthy of "import[ation]" in Ellerth, the majority now argues that this test is too narrow be- cause it permits employers to take retaliatory measures outside the workplace. Ante, at 8-9 (citing Rochon v. Gonzales, 438 F.3d 1211, 1213 (CADC 2006); Berry v. Stevinson Chevrolet, 74 F.3d 980, 984, 986 (CA10 1996)). But the majority's concern is misplaced. First, an employer who wishes to retaliate against an employee for engaging in protected conduct is much more likely to do so on the job. There are far more opportunities for retaliation in that setting, and many forms of retalia- tion off the job constitute crimes and are therefore espe- cially risky. Second, the materially adverse employment action test is not limited to on-the-job retaliation, as Rochon, one of the cases cited by the majority, illustrates. There, a Fed- eral Bureau of Investigation agent claimed that the Bu- reau had retaliated against him by failing to provide the off-duty security that would otherwise have been fur- nished. See 438 F.3d, at 1213-1214. But, for an FBI agent whose life may be threatened during off-duty hours, providing security easily qualifies as a term, condition, or privilege of employment. Certainly, if the FBI had a policy of denying protection to agents of a particular race, such discrimination would be actionable under §703(a). But in Part IIB, rather than adopting the more literal interpretation based on the language of §704(a) alone, the majority instead puts that language aside and adopts a third interpretationone that has no grounding in the statutory language. According to the majority, §704(a) does not reach all retaliatory differences in treatment but only those retaliatory acts that "well might have dis- suaded a reasonable worker from making or supporting a charge of discrimination." Ante, at 13 (internal quotation marks omitted). I see no sound basis for this test. The language of §704(a), which employs the unadorned term "discrimi- nate," does not support this test. The unstated premise of the majority's reasoning seems to be that §704(a)'s only purpose is to prevent employers from taking those actions that are likely to stop employees from complaining about discrimination, but this unstated premise is unfounded. While surely one of the purposes of §704(a) is to prevent employers from engaging in retaliatory measures that dissuade employees from engaging in protected conduct, there is no reason to suppose that this is §704(a)'s only purpose. Indeed, the majority itself identifies another purpose of the antiretaliation provision: "to prevent harm to individuals" who assert their rights. Ante, at 8. Under the majority's test, however, employer conduct that causes harm to an employee is permitted so long as the employer conduct is not so severe as to dissuade a reasonable em- ployee from making or supporting a charge of discrimina- tion. III The practical consequences of the test that the majority adopts strongly suggest that this test is not what Congress intended. First, the majority's test leads logically to perverse results. Under the majority's test, §704(a) reaches retalia- tion that well might dissuade an employee from making or supporting "a charge of discrimination." Ante, at 13 (in- ternal quotation marks omitted). I take it that the phrase "a charge of discrimination" means the particular charge that the employee in question filed,[2] and if that is the proper interpretation, the nature of the discrimination that led to the filing of the charge must be taken into account in applying §704(a). Specifically, the majority's interpretation logically implies that the degree of protec- tion afforded to a victim of retaliation is inversely propor- tional to the severity of the original act of discrimination that prompted the retaliation. A reasonable employee who is subjected to the most severe discrimination will not easily be dissuaded from filing a charge by the threat of retaliation; the costs of filing the charge, including possi- ble retaliation, will have to be great to outweigh the bene- fits, such as preventing the continuation of the discrimina- tion in the future and obtaining damages and other relief for past discrimination. Because the possibility of rela- tively severe retaliation will not easily dissuade this em- ployee, the employer will be able to engage in relatively severe retaliation without incurring liability under §704(a). On the other hand, an employee who is subjected to a much milder form of discrimination will be much more easily dissuaded. For this employee, the costs of complain- ing, including possible retaliation, will not have to be great to outweigh the lesser benefits that might be obtained by filing a charge. These topsy-turvy results make no sense. Second, the majority's conception of a reasonable worker is unclear. Although the majority first states that its test is whether a "reasonable worker" might well be dissuaded, ante, at 13 (internal quotation marks omitted), it later suggests that at least some individual characteristics of the actual retaliation victim must be taken into account. The majority comments that "the significance of any given act of retaliation will often depend upon the particular circumstances," and provides the following illustration: "A schedule change in an employee's work schedule may make little difference to many workers, but may matter enormously to a young mother with school age children." Ante, at 14. This illustration suggests that the majority's test is not whether an act of retaliation well might dissuade the average reasonable worker, putting aside all individual characteristics, but, rather, whether the act well might dissuade a reasonable worker who shares at least some individual characteristics with the actual victim. The majority's illustration introduces three individual charac- teristics: age, gender, and family responsibilities. How many more individual characteristics a court or jury may or must consider is unclear. Finally, the majority's interpretation contains a loose and unfamiliar causation standard. As noted, the major- ity's test asks whether an employer's retaliatory act "well might have dissuaded a reasonable worker from making or supporting a charge of discrimination." Ante, at 13 (inter- nal quotation marks omitted; emphasis added). Especially in an area of the law in which standards of causation are already complex, the introduction of this new and unclear standard is unwelcome. For these reasons, I would not adopt the majority's test but would hold that §704(a) reaches only those discrimina- tory practices covered by §703(a). IV Applying this interpretation, I would affirm the decision of the Court of Appeals. The actions taken against re- spondenther assignment to new and substantially less desirable duties and her suspension without payfall within the definition of an "adverse employment action." With respect to respondent's reassignment, Ellerth specifically identified a "reassignment with significantly different responsibilities" as a "tangible employment action." 524 U.S., at 761. Here, as the Court of Appeals stated, "[i]n essence, . . . the reassignment was a demo- tion." 364 F.3d 789, 803 (CA6 2004). The "new position was by all accounts more arduous and 'dirtier,'" ibid., and petitioner's sole stated rationale for the reassignment was that respondent's prior duties were better suited for some- one with greater seniority. This was virtually an admis- sion that respondent was demoted when those responsi- bilities were taken away from her. I would hold that respondent's suspension without pay likewise satisfied the materially adverse employment action test. Accordingly, although I would hold that a plaintiff asserting a §704(a) retaliation claim must show the same type of materially adverse employment action that is required for a §703(a) discrimination claim, I would hold that petitioner met that standard in this case, and I, therefore, concur in the judgment.	I concur in the judgment, but I disagree with the major- ity's interpretation of the antiretaliation provision of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S. C. The majority's interpretation has no basis in the statutory language and will, I fear, lead to practical problems. I Two provisions of Title VII are important here. Section 703(a) prohibits a broad range of discriminatory employ- ment practices.[1] Among other things, makes it unlawful for an employer "to discriminate against any individual with respect to his compensation, terms, condi- tions, or privileges of employment, because of such indi- vidual's race, color, religion, sex, or national origin." 42 U.S. C. (emphasis added). A complementary and closely related provision, makes it unlawful to "discriminate against" an employee for retaliatory purposes. Section 704(a) states in pertinent part: "It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment because he has op- posed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." 42 U.S. C. (em- phasis added). In this case, we must ascertain the meaning of the term "discriminate" in Two possible interpretations are suggested by the language of § and 704(a). The first is the interpretation that immediately springs to mind if is read by itselfi.e., that the term "discriminate" in means what the term literally means, to treat differently. Respondent staunchly defends this interpretation, which the majority does not embrace, but this interpretation presents problems that are at least sufficient to raise doubts about its correctness. Respon- dent's interpretation makes narrower in scope than and thus implies that the persons whom Title VII is principally designed to protectvictims of discrimi- nation based on race, color, sex, national origin, or relig- ionreceive less protection than victims of retaliation. In addition, respondent's interpretation "makes a federal case" out of any small difference in the way an employee who has engaged in protected conduct is treated. On respondent's view, a retaliation claim must go to the jury if the employee creates a genuine issue on such questions as whether the employee was given any more or less work than others, was subjected to any more or less supervision, or was treated in a somewhat less friendly manner be- cause of his protected activity. There is reason to doubt that Congress meant to burden the federal courts with claims involving relatively trivial differences in treatment. See ; The other plausible interpretation, and the one I favor, reads § and 704(a) together. Under this reading, "discriminat[ion]" under means the discriminatory acts reached by chiefly, discrimination "with respect to compensation, terms, conditions, or privi- leges of employment." This is not, admittedly, the most straightforward reading of the bare language of but it is a reasonable reading that harmonizes § and 704(a). It also provides an objective standard that permits insignificant claims to be weeded out at the sum- mary judgment stage, while providing ample protection for employees who are subjected to real retaliation. The Courts of Appeals that have interpreted in this way state that it requires a materially adverse em- ployment action. See, e.g., Von ; Gupta v. Florida Bd. of Re- gents, cert. denied, ; In Burlington Industries, we "import[ed]" this test for use in a different contextto define the term "tangible employment action," a concept we used to limit an em- ployer's liability for harassment carried out by its supervi- sors. We explained that "[a] tangible employment action constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." II The majority does not adopt either of the two interpreta- tions noted above. In Part IIA of its opinion, the majority criticizes the interpretation that harmonizes § and 704(a) as not sufficiently faithful to the language of Although we found the materially adverse em- ployment action test worthy of "import[ation]" in Ellerth, the majority now argues that this test is too narrow be- cause it permits employers to take retaliatory measures outside the workplace. Ante, at 8-9 ; ). But the majority's concern is misplaced. First, an employer who wishes to retaliate against an employee for engaging in protected conduct is much more likely to do so on the job. There are far more opportunities for retaliation in that setting, and many forms of retalia- tion off the job constitute crimes and are therefore espe- cially risky. Second, the materially adverse employment action test is not limited to on-the-job retaliation, as Rochon, one of the cases cited by the majority, illustrates. There, a Fed- eral Bureau of Investigation agent claimed that the Bu- reau had retaliated against him by failing to provide the off-duty security that would otherwise have been fur- nished. See 438 F.3d, at -1214. But, for an FBI agent whose life may be threatened during off-duty hours, providing security easily qualifies as a term, condition, or privilege of employment. Certainly, if the FBI had a policy of denying protection to agents of a particular race, such discrimination would be actionable under But in Part IIB, rather than adopting the more literal interpretation based on the language of alone, the majority instead puts that language aside and adopts a third interpretationone that has no grounding in the statutory language. According to the majority, does not reach all retaliatory differences in treatment but only those retaliatory acts that "well might have dis- suaded a reasonable worker from making or supporting a charge of discrimination." Ante, at 13 (internal quotation marks omitted). I see no sound basis for this test. The language of which employs the unadorned term "discrimi- nate," does not support this test. The unstated premise of the majority's reasoning seems to be that 's only purpose is to prevent employers from taking those actions that are likely to stop employees from complaining about discrimination, but this unstated premise is unfounded. While surely one of the purposes of is to prevent employers from engaging in retaliatory measures that dissuade employees from engaging in protected conduct, there is no reason to suppose that this is 's only purpose. Indeed, the majority itself identifies another purpose of the antiretaliation provision: "to prevent harm to individuals" who assert their rights. Ante, at 8. Under the majority's test, however, employer conduct that causes harm to an employee is permitted so long as the employer conduct is not so severe as to dissuade a reasonable em- ployee from making or supporting a charge of discrimina- tion. III The practical consequences of the test that the majority adopts strongly suggest that this test is not what Congress intended. First, the majority's test leads logically to perverse results. Under the majority's test, reaches retalia- tion that well might dissuade an employee from making or supporting "a charge of discrimination." Ante, at 13 (in- ternal quotation marks omitted). I take it that the phrase "a charge of discrimination" means the particular charge that the employee in question filed,[2] and if that is the proper interpretation, the nature of the discrimination that led to the filing of the charge must be taken into account in applying Specifically, the majority's interpretation logically implies that the degree of protec- tion afforded to a victim of retaliation is inversely propor- tional to the severity of the original act of discrimination that prompted the retaliation. A reasonable employee who is subjected to the most severe discrimination will not easily be dissuaded from filing a charge by the threat of retaliation; the costs of filing the charge, including possi- ble retaliation, will have to be great to outweigh the bene- fits, such as preventing the continuation of the discrimina- tion in the future and obtaining damages and other relief for past discrimination. Because the possibility of rela- tively severe retaliation will not easily dissuade this em- ployee, the employer will be able to engage in relatively severe retaliation without incurring liability under On the other hand, an employee who is subjected to a much milder form of discrimination will be much more easily dissuaded. For this employee, the costs of complain- ing, including possible retaliation, will not have to be great to outweigh the lesser benefits that might be obtained by filing a charge. These topsy-turvy results make no sense. Second, the majority's conception of a reasonable worker is unclear. Although the majority first states that its test is whether a "reasonable worker" might well be dissuaded, ante, at 13 (internal quotation marks omitted), it later suggests that at least some individual characteristics of the actual retaliation victim must be taken into account. The majority comments that "the significance of any given act of retaliation will often depend upon the particular circumstances," and provides the following illustration: "A schedule change in an employee's work schedule may make little difference to many workers, but may matter enormously to a young mother with school age children." Ante, at 14. This illustration suggests that the majority's test is not whether an act of retaliation well might dissuade the average reasonable worker, putting aside all individual characteristics, but, rather, whether the act well might dissuade a reasonable worker who shares at least some individual characteristics with the actual victim. The majority's illustration introduces three individual charac- teristics: age, gender, and family responsibilities. How many more individual characteristics a court or jury may or must consider is unclear. Finally, the majority's interpretation contains a loose and unfamiliar causation standard. As noted, the major- ity's test asks whether an employer's retaliatory act "well might have dissuaded a reasonable worker from making or supporting a charge of discrimination." Ante, at 13 (inter- nal quotation marks omitted; emphasis added). Especially in an area of the law in which standards of causation are already complex, the introduction of this new and unclear standard is unwelcome. For these reasons, I would not adopt the majority's test but would hold that reaches only those discrimina- tory practices covered by IV Applying this interpretation, I would affirm the decision of the Court of Appeals. The actions taken against re- spondenther assignment to new and substantially less desirable duties and her suspension without payfall within the definition of an "adverse employment action." With respect to respondent's reassignment, Ellerth specifically identified a "reassignment with significantly different responsibilities" as a "tangible employment action." 524 U.S., Here, as the Court of Appeals stated, "[i]n essence, the reassignment was a demo- tion." The "new position was by all accounts more arduous and 'dirtier,'" ibid., and petitioner's sole stated rationale for the reassignment was that respondent's prior duties were better suited for some- one with greater seniority. This was virtually an admis- sion that respondent was demoted when those responsi- bilities were taken away from her. I would hold that respondent's suspension without pay likewise satisfied the materially adverse employment action test. Accordingly, although I would hold that a plaintiff asserting a retaliation claim must show the same type of materially adverse employment action that is required for a discrimination claim, I would hold that petitioner met that standard in this case, and I, therefore, concur in the judgment.	2,023
Justice Scalia	majority	false	Plaut v. Spendthrift Farm, Inc.	1995-04-18	null	https://www.courtlistener.com/opinion/117916/plaut-v-spendthrift-farm-inc/	https://www.courtlistener.com/api/rest/v3/clusters/117916/	1,995	1994-040	3	7	2	The question presented in this case is whether § 27A(b) of the Securities Exchange Act of 1934, to the extent that it requires federal courts to reopen final judgments in private civil actions under § 10(b) of the Act, contravenes the Constitution's separation of powers or the Due Process Clause of the Fifth Amendment. I In 1987, petitioners brought a civil action against respondents in the United States District Court for the Eastern District of Kentucky. The complaint alleged that in 1983 and 1984 respondents had committed fraud and deceit in the sale of stock in violation of § 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 of the Securities and Exchange Commission. The case was mired in pretrial proceedings in the District Court until June 20, 1991, when we decided Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350. Lampf held that "[l]itigation instituted pursuant to § 10(b) and Rule 10b-5 . . . must be commenced within one year after the discovery of the facts constituting the violation and within three years after such violation." Id., at 214 364. We applied that holding to the plaintiff-respondents in Lampf itself, found their suit untimely, and reinstated a summary judgment previously entered in favor of the defendant-petitioners. Ibid. On the same day we decided James B. Beam Distilling Co. v. Georgia, 501 U.S. 529 (1991), in which a majority of the Court held, albeit in different opinions, that a new rule of federal law that is applied to the parties in the case announcing the rule must be applied as well to all cases pending on direct review. See Harper v. Virginia Dept. of Taxation, 509 U.S. 86, 92 (1993). The joint effect of Lampf and Beam was to mandate application of the 1-year/3-year limitations period to petitioners' suit. The District Court, finding that petitioners' claims were untimely under the Lampf rule, dismissed their action with prejudice on August 13, 1991. Petitioners filed no appeal; the judgment accordingly became final 30 days later. See 28 U.S. C. § 2107(a) (1988 ed., Supp. V); Griffith v. Kentucky, 479 U.S. 314, 321, n. 6 (1987). On December 19, 1991, the President signed the Federal Deposit Insurance Corporation Improvement Act of 1991, 105 Stat. 2236. Section 476 of the Acta section that had nothing to do with FDIC improvementsbecame § 27A of the Securities Exchange Act of 1934, and was later codified as 15 U.S. C. § 78aa-1 (1988 ed., Supp. V). It provides: "(a) Effect on pending causes of action "The limitation period for any private civil action implied under section 78j(b) of this title [§ 10(b) of the Securities Exchange Act of 1934] that was commenced on or before June 19, 1991, shall be the limitation period provided by the laws applicable in the jurisdiction, including principles of retroactivity, as such laws existed on June 19, 1991. "(b) Effect on dismissed causes of action "Any private civil action implied under section 78j(b) of this title that was commenced on or before June 19, 1991 215 "(1) which was dismissed as time barred subsequent to June 19, 1991, and "(2) which would have been timely filed under the limitation period provided by the laws applicable in the jurisdiction, including principles of retroactivity, as such laws existed on June 19, 1991, "shall be reinstated on motion by the plaintiff not later than 60 days after December 19, 1991." On February 11, 1992, petitioners returned to the District Court and filed a motion to reinstate the action previously dismissed with prejudice. The District Court found that the conditions set out in §§ 27A(b)(1) and (2) were met, so that petitioners' motion was required to be granted by the terms of the statute. It nonetheless denied the motion, agreeing with respondents that § 27A(b) is unconstitutional. Memorandum Opinion and Order, Civ. Action No. 87-438 (ED Ky., Apr. 13, 1992). The United States Court of Appeals for the Sixth Circuit affirmed. 1 F.3d 1487 (1993). We granted certiorari. 511 U.S. 1141 (1994).[1] II Respondents bravely contend that § 27A(b) does not require federal courts to reopen final judgments, arguing first that the reference to "the laws applicable in the jurisdiction. . . as such laws existed on June 19, 1991" (the day before Lampf was decided) may reasonably be construed to refer precisely to the limitations period provided in Lampf itself, in which case petitioners' action was time barred even under 216 § 27A.[2] It is true that "[a] judicial construction of a statute is an authoritative statement of what the statute meant before as well as after the decision of the case giving rise to that construction." Rivers v. Roadway Express, Inc., 511 U.S. 298, 312-313 (1994); see also id., at 313, n. 12. But respondents' argument confuses the question of what the law in fact was on June 19, 1991, with the distinct question of what § 27A means by its reference to what the law was. We think it entirely clear that it does not mean the law enunciated in Lampf, for two independent reasons. First, Lampf provides a uniform, national statute of limitations (instead of using the applicable state limitations period, as lower federal courts had previously done. See Lampf, 501 U. S., at 354, and n. 1). If the statute referred to that law, its reference to the "laws applicable in the jurisdiction " (emphasis added) would be quite inexplicable. Second, if the statute refers to the law enunciated in Lampf, it is utterly without effect, a result to be avoided if possible. American Nat. Red Cross v. S. G., 505 U.S. 247, 263-264 (1992); see 2A N. Singer, Sutherland on Statutory Construction § 46.06 (Sands rev. 4th ed. 1984). It would say, in subsection (a), that the limitations period is what the Supreme Court has held to be the limitations period; and in subsection (b), that suits dismissed as untimely under Lampf which were timely under Lampf (a null set) shall be reinstated. To avoid a constitutional question by holding that Congress enacted, and the President approved, a blank sheet of paper would indeed constitute "disingenuous evasion." George Moore Ice Cream Co. v. Rose, 289 U.S. 373, 379 (1933). 217 As an alternative reason why § 27A(b) does not require the reopening of final judgments, respondents suggest that the subsection applies only to cases still pending in the federal courts when § 27A was enacted. This has only half the defect of the first argument, for it makes only half of § 27A purposeless§ 27A(b). There is no need to "reinstate" actions that are still pending; § 27A(a) (the new statute of limitations) could and would be applied by the courts of appeals. On respondents' reading, the only consequence of § 27A(b) would be the negligible one of permitting the plaintiff in the pending appeal from a statute-of-limitations dismissal to return immediately to the district court, instead of waiting for the court of appeals' reversal. To enable § 27A(b) to achieve such an insignificant consequence, one must disregard the language of the provision, which refers generally to suits "dismissed as time barred." It is perhaps arguable that this does not include suits that are not yet finally dismissed, i. e., suits still pending on appeal; but there is no basis for the contention that it includes only those. In short, there is no reasonable construction on which § 27A(b) does not require federal courts to reopen final judgments in suits dismissed with prejudice by virtue of Lampf. III Respondents submit that § 27A(b) violates both the separation of powers and the Due Process Clause of the Fifth Amendment.[3] Because the latter submission, if correct, might dictate a similar result in a challenge to state legislation under the Fourteenth Amendment, the former is the narrower ground for adjudication of the constitutional questions in the case, and we therefore consider it first. Ashwander v. TVA, 297 U.S. 288, 347 (1936) (Brandeis, J., concurring). We conclude that in § 27A(b) Congress has exceeded its authority by requiring the federal courts to exercise 218 "[t]he judicial Power of the United States," U. S. Const., Art. III, § 1, in a manner repugnant to the text, structure, and traditions of Article III. Our decisions to date have identified two types of legislation that require federal courts to exercise the judicial power in a manner that Article III forbids. The first appears in United States v. Klein, 13 Wall. 128 (1872), where we refused to give effect to a statute that was said "[to] prescribe rules of decision to the Judicial Department of the government in cases pending before it." Id., at 146. Whatever the precise scope of Klein, however, later decisions have made clear that its prohibition does not take hold when Congress "amend[s] applicable law." Robertson v. Seattle Audubon Soc., 503 U.S. 429, 441 (1992). Section 27A(b) indisputably does set out substantive legal standards for the Judiciary to apply, and in that sense changes the law (even if solely retroactively). The second type of unconstitutional restriction upon the exercise of judicial power identified by past cases is exemplified by Hayburn's Case, 2 Dall. 409 (1792), which stands for the principle that Congress cannot vest review of the decisions of Article III courts in officials of the Executive Branch. See, e. g., Chicago & Southern Air Lines, Inc. v. Waterman S. S. Corp., 333 U.S. 103 (1948). Yet under any application of § 27A(b) only courts are involved; no officials of other departments sit in direct review of their decisions. Section 27A(b) therefore offends neither of these previously established prohibitions. We think, however, that § 27A(b) offends a postulate of Article III just as deeply rooted in our law as those we have mentioned. Article III establishes a "judicial department" with the "province and duty . . . to say what the law is" in particular cases and controversies. Marbury v. Madison, 1 Cranch 137, 177 (1803). The record of history shows that the Framers crafted this charter of the judicial department with an expressed understanding that it gives the Federal Judiciary the power, not merely to rule on cases, but to de- 219 cide them, subject to review only by superior courts in the Article III hierarchywith an understanding, in short, that "a judgment conclusively resolves the case" because "a `judicial Power' is one to render dispositive judgments." Easterbrook, Presidential Review, 40 Case W. Res. L. Rev. 905, 926 (1990). By retroactively commanding the federal courts to reopen final judgments, Congress has violated this fundamental principle. A The Framers of our Constitution lived among the ruins of a system of intermingled legislative and judicial powers, which had been prevalent in the colonies long before the Revolution, and which after the Revolution had produced factional strife and partisan oppression. In the 17th and 18th centuries colonial assemblies and legislatures functioned as courts of equity of last resort, hearing original actions or providing appellate review of judicial judgments. G. Wood, The Creation of the American Republic 1776-1787, pp. 154-155 (1969). Often, however, they chose to correct the judicial process through special bills or other enacted legislation. It was common for such legislation not to prescribe a resolution of the dispute, but rather simply to set aside the judgment and order a new trial or appeal. M. Clarke, Parliamentary Privilege in the American Colonies 49-51 (1943). See, e. g., Judicial Action by the Provincial Legislature of Massachusetts, 15 Harv. L. Rev. 208 (1902) (collecting documents from 1708-1709); 5 Laws of New Hampshire, Including Public and Private Acts, Resolves, Votes, Etc., 1784-1792 (Metcalf ed. 1916). Thus, as described in our discussion of Hayburn's Case, supra, at 218, such legislation bears not on the problem of interbranch review but on the problem of finality of judicial judgments. The vigorous, indeed often radical, populism of the revolutionary legislatures and assemblies increased the frequency of legislative correction of judgments. Wood, supra, at 155156, 407-408. See also INS v. Chadha, 462 U.S. 919, 961 220 (1983) (Powell, J., concurring). "The period 1780-1787 . . . was a period of `constitutional reaction' " to these developments, "which . . . leaped suddenly to its climax in the Philadelphia Convention." E. Corwin, The Doctrine of Judicial Review 37 (1914). Voices from many quarters, official as well as private, decried the increasing legislative interference with the private-law judgments of the courts. In 1786, the Vermont Council of Censors issued an "Address of the Council of Censors to the Freemen of the State of Vermont" to fulfill the council's duty, under the State Constitution of 1784, to report to the people "`whether the legislative and executive branches of government have assumed to themselves, or exercised, other or greater powers than they are entitled to by the Constitution.' " Vermont State Papers 1779-1786, pp. 531, 533 (Slade ed. 1823). A principal method of usurpation identified by the censors was "[t]he instances. . . of judgments being vacated by legislative acts." Id., at 540. The council delivered an opinion "that the General Assembly, in all the instances where they have vacated judgments, recovered in due course of law, (except where the particular circumstances of the case evidently made it necessary to grant a new trial) have exercised a power not delegated, or intended to be delegated, to them, by the Constitution. . . . It supercedes the necessity of any other law than the pleasure of the Assembly, and of any other court than themselves: for it is an imposition on the suitor, to give him the trouble of obtaining, after several expensive trials, a final judgment agreeably to the known established laws of the land; if the Legislature, by a sovereign act, can interfere, reverse the judgment, and decree in such manner, as they, unfettered by rules, shall think proper." Ibid. So too, the famous report of the Pennsylvania Council of Censors in 1784 detailed the abuses of legislative interference with the courts at the behest of private interests and 221 factions. As the General Assembly had (they wrote) made a custom of "extending their deliberations to the cases of individuals," the people had "been taught to consider an application to the legislature, as a shorter and more certain mode of obtaining relief from hardships and losses, than the usual process of law." The censors noted that because "favour and partiality have, from the nature of public bodies of men, predominated in the distribution of this relief . . . [t]hese dangerous procedures have been too often recurred to, since the revolution." Report of the Committee of the Council of Censors 6 (Bailey ed. 1784). This sense of a sharp necessity to separate the legislative from the judicial power, prompted by the crescendo of legislative interference with private judgments of the courts, triumphed among the Framers of the new Federal Constitution. See Corwin, The Progress of Constitutional Theory Between the Declaration of Independence and the Meeting of the Philadelphia Convention, 30 Am. Hist. Rev. 511, 514-517 (1925). The Convention made the critical decision to establish a judicial department independent of the Legislative Branch by providing that "the judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." Before and during the debates on ratification, Madison, Jefferson, and Hamilton each wrote of the factional disorders and disarray that the system of legislative equity had produced in the years before the framing; and each thought that the separation of the legislative from the judicial power in the new Constitution would cure them. Madison's Federalist No. 48, the famous description of the process by which "[t]he legislative department is every where extending the sphere of its activity, and drawing all power into its impetuous vortex," referred to the report of the Pennsylvania Council of Censors to show that in that State "cases belonging to the judiciary department [had been] frequently drawn within legislative cognizance and determination." The Federalist 222 No. 48, pp. 333, 337 (J. Cooke ed. 1961). Madison relied as well on Jefferson's Notes on the State of Virginia, which mentioned, as one example of the dangerous concentration of governmental powers into the hands of the legislature, that "the Legislature . . . in many instances decided rights which should have been left to judiciary controversy." Id., at 336 (emphasis deleted).[4] If the need for separation of legislative from judicial power was plain, the principal effect to be accomplished by that separation was even plainer. As Hamilton wrote in his exegesis of Article III, § 1, in The Federalist No. 81: "It is not true . . . that the parliament of Great Britain, or the legislatures of the particular states, can rectify the exceptionable decisions of their respective courts, in any other sense than might be done by a future legislature of the United States. The theory neither of the British, nor the state constitutions, authorises the revisal of a judicial sentence, by a legislative act. . . . A legislature without exceeding its province cannot reverse a determination once made, in a particular case; though it may prescribe a new rule for future cases." The Federalist No. 81, p. 545 (J. Cooke ed. 1961). The essential balance created by this allocation of authority was a simple one. The Legislature would be possessed of power to "prescrib[e] the rules by which the duties and rights of every citizen are to be regulated," but the power of "[t]he interpretation of the laws" would be "the proper and peculiar province of the courts." Id., No. 78, at 523, 525. 223 See also Corwin, The Doctrine of Judicial Review, at 42. The Judiciary would be, "from the nature of its functions, . . . the [department] least dangerous to the political rights of the constitution," not because its acts were subject to legislative correction, but because the binding effect of its acts was limited to particular cases and controversies. Thus, "though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter: . . . so long as the judiciary remains truly distinct from both the legislative and executive." The Federalist No. 78, at 522, 523. Judicial decisions in the period immediately after ratification of the Constitution confirm the understanding that it forbade interference with the final judgments of courts. In Calder v. Bull, 3 Dall. 386 (1798), the Legislature of Connecticut had enacted a statute that set aside the final judgment of a state court in a civil case. Although the issue before this Court was the construction of the Ex Post Facto Clause, Art. I, § 10, Justice Iredell (a leading Federalist who had guided the Constitution to ratification in North Carolina) noted that "the Legislature of [Connecticut] has been in the uniform, uninterrupted, habit of exercising a general superintending power over its courts of law, by granting new trials. It may, indeed, appear strange to some of us, that in any form, there should exist a power to grant, with respect to suits depending or adjudged, new rights of trial, new privileges of proceeding, not previously recognized and regulated by positive institutions . . . . The power . . . is judicial in its nature; and whenever it is exercised, as in the present instance, it is an exercise of judicial, not of legislative, authority." Id., at 398. The state courts of the era showed a similar understanding of the separation of powers, in decisions that drew little distinction between the federal and state constitutions. To 224 choose one representative example from a multitude: In Bates v. Kimball, 2 Chipman 77 (Vt. 1824), a special Act of the Vermont Legislature authorized a party to appeal from the judgment of a court even though, under the general law, the time for appeal had expired. The court, noting that the unappealed judgment had become final, set itself the question "Have the Legislature power to vacate or annul an existing judgment between party and party?" Id., at 83. The answer was emphatic: "The necessity of a distinct and separate existence of the three great departments of government. . . had been proclaimed and enforced by . . . Blackstone, Jefferson and Madison," and had been "sanctioned by the people of the United States, by being adopted in terms more or less explicit, into all their written constitutions." Id., at 84. The power to annul a final judgment, the court held (citing Hayburn's Case, 2 Dall., at 410), was "an assumption of Judicial power," and therefore forbidden. Bates v. Kimball, supra, at 90. For other examples, see Merrill v. Sherburne, 1 N. H. 199 (1818) (legislature may not vacate a final judgment and grant a new trial); Lewis v. Webb, 3 Greenleaf 299 (Me. 1825) (same); T. Cooley, Constitutional Limitations 95-96 (1868) (collecting cases); J. Sutherland, Statutory Construction 18-19 (J. Lewis ed. 1904) (same). By the middle of the 19th century, the constitutional equilibrium created by the separation of the legislative power to make general law from the judicial power to apply that law in particular cases was so well understood and accepted that it could survive even Dred Scott v. Sandford, 19 How. 393 (1857). In his First Inaugural Address, President Lincoln explained why the political branches could not, and need not, interfere with even that infamous judgment: "I do not forget the position assumed by some, that constitutional questions are to be decided by the Supreme Court; nor do I deny that such decisions must be binding in any case, upon the parties to a suit, as to the object of that suit . . . . And while it is obviously possible that 225 such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be over-ruled, and never become a precedent for other cases, can better be borne than could the evils of a different practice." 4 R. Basler, The Collected Works of Abraham Lincoln 268 (1953) (First Inaugural Address 1861). And the great constitutional scholar Thomas Cooley addressed precisely the question before us in his 1868 treatise: "If the legislature cannot thus indirectly control the action of the courts, by requiring of them a construction of the law according to its own views, it is very plain it cannot do so directly, by setting aside their judgments, compelling them to grant new trials, ordering the discharge of offenders, or directing what particular steps shall be taken in the progress of a judicial inquiry." Cooley, supra, at 94-95. B Section 27A(b) effects a clear violation of the separationof-powers principle we have just discussed. It is, of course, retroactive legislation, that is, legislation that prescribes what the law was at an earlier time, when the act whose effect is controlled by the legislation occurredin this case, the filing of the initial Rule 10b-5 action in the District Court. When retroactive legislation requires its own application in a case already finally adjudicated, it does no more and no less than "reverse a determination once made, in a particular case." The Federalist No. 81, at 545. Our decisions stemming from Hayburn's Case although their precise holdings are not strictly applicable here, see supra, at 218have uniformly provided fair warning that such an act exceeds the powers of Congress. See, e. g., Chicago & Southern Air Lines, Inc., 333 U. S., at 113 ("Judgments within the powers vested in courts by the Judiciary Article 226 of the Constitution may not lawfully be revised, overturned or refused faith and credit by another Department of Government"); United States v. O'Grady, 22 Wall. 641, 647-648 (1875) ("Judicial jurisdiction implies the power to hear and determine a cause, and . . . Congress cannot subject the judgments of the Supreme Court to the re-examination and revision of any other tribunal"); Gordon v. United States, 117 U. S. Appx. 697, 700-704 (1864) (opinion of Taney, C. J.) (judgments of Article III courts are "final and conclusive upon the rights of the parties"); Hayburn's Case, 2 Dall., at 411 (opinion of Wilson and Blair, JJ., and Peters, D. J.) ("[R]evision and control" of Article III judgments is "radically inconsistent with the independence of that judicial power which is vested in the courts"); id., at 413 (opinion of Iredell, J., and Sitgreaves, D. J.) ("[N]o decision of any court of the United States can, under any circumstances, . . . be liable to a revision, or even suspension, by the [l]egislature itself, in whom no judicial power of any kind appears to be vested"). See also Pennsylvania v. Wheeling & Belmont Bridge Co., 18 How. 421, 431 (1856) ("[I]t is urged, that the act of congress cannot have the effect and operation to annul the judgment of the court already rendered, or the rights determined thereby . . . . This, as a general proposition, is certainly not to be denied, especially as it respects adjudication upon the private rights of parties. When they have passed into judgment the right becomes absolute, and it is the duty of the court to enforce it"). Today those clear statements must either be honored, or else proved false. It is true, as petitioners contend, that Congress can always revise the judgments of Article III courts in one sense: When a new law makes clear that it is retroactive, an appellate court must apply that law in reviewing judgments still on appeal that were rendered before the law was enacted, and must alter the outcome accordingly. See United States v. Schooner Peggy, 1 Cranch 103 (1801); Landgraf v. USI Film Products, 511 U.S. 244, 273-280 (1994). Since that is 227 so, petitioners argue, federal courts must apply the "new" law created by § 27A(b) in finally adjudicated cases as well; for the line that separates lower court judgments that are pending on appeal (or may still be appealed), from lower court judgments that are final, is determined by statute, see, e. g., 28 U.S. C. § 2107(a) (30-day time limit for appeal to federal court of appeals), and so cannot possibly be a constitutional line. But a distinction between judgments from which all appeals have been forgone or completed, and judgments that remain on appeal (or subject to being appealed), is implicit in what Article III creates: not a batch of unconnected courts, but a judicial department composed of "inferior Courts" and "one supreme Court." Within that hierarchy, the decision of an inferior court is not (unless the time for appeal has expired) the final word of the department as a whole. It is the obligation of the last court in the hierarchy that rules on the case to give effect to Congress's latest enactment, even when that has the effect of overturning the judgment of an inferior court, since each court, at every level, must "decide according to existing laws." Schooner Peggy, supra, at 109. Having achieved finality, however, a judicial decision becomes the last word of the judicial department with regard to a particular case or controversy, and Congress may not declare by retroactive legislation that the law applicable to that very case was something other than what the courts said it was. Finality of a legal judgment is determined by statute, just as entitlement to a government benefit is a statutory creation; but that no more deprives the former of its constitutional significance for separation-ofpowers analysis than it deprives the latter of its significance for due process purposes. See, e. g., Cleveland Bd. of Ed. v. Loudermill, 470 U.S. 532 (1985); Meachum v. Fano, 427 U.S. 215 (1976). To be sure, § 27A(b) reopens (or directs the reopening of) final judgments in a whole class of cases rather than in a particular suit. We do not see how that makes any difference. 228 The separation-of-powers violation here, if there is any, consists of depriving judicial judgments of the conclusive effect that they had when they were announced, not of acting in a mannerviz., with particular rather than general effectthat is unusual (though, we must note, not impossible) for a legislature. To be sure, a general statute such as this one may reduce the perception that legislative interference with judicial judgments was prompted by individual favoritism; but it is legislative interference with judicial judgments nonetheless. Not favoritism, nor even corruption, but power is the object of the separation-of-powers prohibition. The prohibition is violated when an individual final judgment is legislatively rescinded for even the very best of reasons, such as the legislature's genuine conviction (supported by all the law professors in the land) that the judgment was wrong; and it is violated 40 times over when 40 final judgments are legislatively dissolved. It is irrelevant as well that the final judgments reopened by § 27A(b) rested on the bar of a statute of limitations. The rules of finality, both statutory and judge made, treat a dismissal on statute-of-limitations grounds the same way they treat a dismissal for failure to state a claim, for failure to prove substantive liability, or for failure to prosecute: as a judgment on the merits. See, e. g., Fed. Rule Civ. Proc. 41(b); United States v. Oppenheimer, 242 U.S. 85, 87-88 (1916). Petitioners suggest, directly or by implication, two reasons why a merits judgment based on this particular ground may be uniquely subject to congressional nullification. First, there is the fact that the length and indeed even the very existence of a statute of limitations upon a federal cause of action is entirely subject to congressional control. But virtually all of the reasons why a final judgment on the merits is rendered on a federal claim are subject to congressional control. Congress can eliminate, for example, a particular element of a cause of action that plaintiffs have found it difficult to establish; or an evidentiary rule that has often 229 excluded essential testimony; or a rule of offsetting wrong (such as contributory negligence) that has often prevented recovery. To distinguish statutes of limitations on the ground that they are mere creatures of Congress is to distinguish them not at all. The second supposedly distinguishing characteristic of a statute of limitations is that it can be extended, without violating the Due Process Clause, after the cause of the action arose and even after the statute itself has expired. See, e. g., Chase Securities Corp. v. Donaldson, 325 U.S. 304 (1945). But that also does not set statutes of limitations apart. To mention only one other broad category of judgment-producing legal rule: Rules of pleading and proof can similarly be altered after the cause of action arises, Landgraf v. USI Film Products, supra, at 275, and n. 29, and even, if the statute clearly so requires, after they have been applied in a case but before final judgment has been entered. Petitioners' principle would therefore lead to the conclusion that final judgments rendered on the basis of a stringent (or, alternatively, liberal) rule of pleading or proof may be set aside for retrial under a new liberal (or, alternatively, stringent) rule of pleading or proof. This alone provides massive scope for undoing final judgments and would substantially subvert the doctrine of separation of powers. The central theme of the dissent is a variant on these arguments. The dissent maintains that Lampf "announced" a new statute of limitations, post, at 246, in an act of "judicial. . . lawmaking," post, at 247, that "changed the law," post, at 250. That statement, even if relevant, would be wrong. The point decided in Lampf had never before been addressed by this Court, and was therefore an open question, no matter what the lower courts had held at the time. But the more important point is that Lampf as such is irrelevant to this case. The dissent itself perceives that "[w]e would have the same issue to decide had Congress enacted the Lampf rule," and that the Lampf rule's genesis in judicial lawmaking rather than, shall we say, legislative lawmaking, "should not 230 affect the separation-of-powers analysis." Post, at 247. Just so. The issue here is not the validity or even the source of the legal rule that produced the Article III judgments, but rather the immunity from legislative abrogation of those judgments themselves. The separation-of-powers question before us has nothing to do with Lampf, and the dissent's attack on Lampf has nothing to do with the question before us. C Apart from the statute we review today, we know of no instance in which Congress has attempted to set aside the final judgment of an Article III court by retroactive legislation. That prolonged reticence would be amazing if such interference were not understood to be constitutionally proscribed. The closest analogue that the Government has been able to put forward is the statute at issue in United States v. Sioux Nation, 448 U.S. 371 (1980). That law required the Court of Claims, "`[n]otwithstanding any other provision of law . . . [to]review on the merits, without regard to the defense of res judicata or collateral estoppel,' " a Sioux claim for just compensation from the United States even though the Court of Claims had previously heard and rejected that very claim. We considered and rejected separation-of-powers objections to the statute based upon Hayburn's Case and United States v. Klein. See 448 U.S., at 391-392. The basis for our rejection was a line of precedent (starting with Cherokee Nation v. United States, 270 U.S. 476 (1926)) that stood, we said, for the proposition that "Congress has the power to waive the res judicata effect of a prior judgment entered in the Government's favor on a claim against the United States." Sioux Nation, 448 U. S., at 397. And our holding was as narrow as the precedent on which we had relied: "In sum, . . . Congress' mere waiver of the res judicata effect of a prior judicial decision rejecting the validity of a legal claim against the United States does 231 not violate the doctrine of separation of powers." Id., at 407.[5] The Solicitor General suggests that even if Sioux Nation is read in accord with its holding, it nonetheless establishes that Congress may require Article III courts to reopen their final judgments, since "if res judicata were compelled by Article III to safeguard the structural independence of the courts, the doctrine would not be subject to waiver by any party litigant." Brief for United States 27 (citing Commodity Futures Trading Comm'n v. Schor, 478 U.S. 833, 850-851 (1986)). But the proposition that legal defenses based upon doctrines central to the courts' structural independence can never be waived simply does not accord with our cases. Certainly one such doctrine consists of the "judicial Power" to disregard an unconstitutional statute, see Marbury, 1 Cranch, at 177; yet none would suggest that a litigant may never waive the defense that a statute is unconstitutional. See, e. g., G. D. Searle & Co. v. Cohn, 455 U.S. 404, 414 (1982). What may follow from our holding that the judicial power unalterably includes the power to render final judgments is not that waivers of res judicata are always impermissible, but rather that, as many Federal Courts of Appeals have held, waivers of res judicata need not always be accepted that trial courts may in appropriate cases raise the res judicata bar on their own motion. See, e. g., Coleman v. Ramada Hotel Operating Co., 933 F.2d 470, 475 (CA7 1991); In re Medomak Canning, 922 F.2d 895, 904 (CA1 1990); Holloway Constr. Co. v. United States Dept. of Labor, 891 F.2d 1211, 1212 (CA6 1989). Waiver subject to the control of the 232 courts themselves would obviously raise no issue of separation of powers, and would be precisely in accord with the language of the decision that the Solicitor General relies upon. We held in Schor that, although a litigant had consented to bring a state-law counterclaim before an Article I tribunal, 478 U.S., at 849, we would nonetheless choose to consider his Article III challenge, because "when these Article III limitations are at issue, notions of consent and waiver cannot be dispositive, " id., at 851 (emphasis added). See also Freytag v. Commissioner, 501 U.S. 868, 878-879 (1991) (finding a "rare cas[e] in which we should exercise our discretion" to hear a waived claim based on the Appointments Clause, Art. II, § 2, cl. 2).[6] Petitioners also rely on a miscellany of decisions upholding legislation that altered rights fixed by the final judgments of non-Article III courts, see, e. g., Sampeyreac v. United States, 7 Pet. 222, 238 (1833); Freeborn v. Smith, 2 Wall. 160 (1865), or administrative agencies, Paramino Lumber Co. v. Marshall, 309 U.S. 370 (1940), or that altered the prospective effect of injunctions entered by Article III courts, Wheeling & Belmont Bridge Co., 18 How., at 421. These cases distinguish themselves; nothing in our holding today calls them into question. Petitioners rely on general statements from some of these cases that legislative annulment of final judgments is not an exercise of judicial power. But even if it were our practice to decide cases by weight of prior dicta, we would find the many dicta that reject congressional 233 power to revise the judgments of Article III courts to be the more instructive authority. See supra, at 225-226.[7] Finally, petitioners liken § 27A(b) to Federal Rule of Civil Procedure 60(b), which authorizes courts to relieve parties from a final judgment for grounds such as excusable neglect, newly discovered evidence, fraud, or "any other reason justifying relief . . . ." We see little resemblance. Rule 60(b), which authorizes discretionary judicial revision of judgments in the listed situations and in other "`extraordinary circumstances,' " Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 864 (1988), does not impose any legislative mandate to reopen upon the courts, but merely reflects and 234 confirms the courts' own inherent and discretionary power, "firmly established in English practice long before the foundation of our Republic," to set aside a judgment whose enforcement would work inequity. Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 244 (1944). Thus, Rule 60(b), and the tradition that it embodies, would be relevant refutation of a claim that reopening a final judgment is always a denial of property without due process; but they are irrelevant to the claim that legislative instruction to reopen impinges upon the independent constitutional authority of the courts. The dissent promises to provide "[a] few contemporary examples" of statutes retroactively requiring final judgments to be reopened, "to demonstrate that [such statutes] are ordinary products of the exercise of legislative power." Post, at 256. That promise is not kept. The relevant retroactivity, of course, consists not of the requirement that there be set aside a judgment that has been rendered prior to its being setting aside for example, a statute passed today which says that all default judgments rendered in the future may be reopened within 90 days after their entry. In that sense, all requirements to reopen are "retroactive," and the designation is superfluous. Nothing we say today precludes a law such as that. The finality that a court can pronounce is no more than what the law in existence at the time of judgment will permit it to pronounce. If the law then applicable says that the judgment may be reopened for certain reasons, that limitation is built into the judgment itself, and its finality is so conditioned. The present case, however, involves a judgment that Congress subjected to a reopening requirement which did not exist when the judgment was pronounced. The dissent provides not a single clear prior instance of such congressional action. The dissent cites, first, Rule 60(b), which it describes as a "familiar remedial measure." Ibid. As we have just discussed, Rule 60(b) does not provide a new remedy at all, but 235 is simply the recitation of pre-existing judicial power. The same is true of another of the dissent's examples, 28 U.S. C. § 2255, which provides federal prisoners a statutory motion to vacate a federal sentence. This procedure "`restates, clarifies and simplifies the procedure in the nature of the ancient writ of error coram nobis.'" United States v. Hayman, 342 U.S. 205, 218 (1952) (quoting the 1948 Reviser's Note to § 2255). It is meaningless to speak of these statutes as applying "retroactively," since they simply codified judicial practice that pre-existed. Next, the dissent cites the provision of the Soldiers' and Sailors' Civil Relief Act of 1940, 54 Stat. 1178, 50 U.S. C. App. § 520(4), which authorizes courts, upon application, to reopen judgments against members of the Armed Forces entered while they were on active duty. It could not be clearer, however, that this provision was not retroactive. It says: "If any judgment shall be rendered in any action or proceeding governed by this section against any person in military service during the period of such service . . . such judgment may . . . be opened . . . ." (Emphasis added.) The dissent also cites, post, at 258, a provision of the Handicapped Children's Protection Act of 1986, 82 Stat. 901, 20 U.S. C. § 1415(e)(4)(B) (1988 ed. and Supp. V), which provided for the award of attorney's fees under the Education for All Handicapped Children Act of 1975, 89 Stat. 773, 20 U.S. C. § 1411 et seq. (1988 ed. and Supp. V). This changed the law regarding attorney's fees under the Education for All Handicapped Children Act, after our decision in Smith v. Robinson, 468 U.S. 992 (1984), found such fees to be unavailable. The provision of the Statutes at Large adopting this amendment to the United States Code specified, in effect, that it would apply not only to proceedings brought after its enactment, but also to proceedings pending at the time of, or brought after, the decision in Smith. See 100 Stat. 798. The amendment says nothing about reopening final judgments, and the retroactivity provision may well mean nothing 236 more than that it applies not merely to new suits commenced after the date of its enactment, but also to previously filed (but not yet terminated) suits of the specified sort. This interpretation would be consistent with the only case the dissent cites, which involved a court-entered consent decree not yet fully executed. Counsel v. Dow, 849 F.2d 731, 734, 738-739 (CA2 1988). Alternatively, the statute can perhaps be understood to create a new cause of action for attorney's fees attributable to already concluded litigation. That would create no separation-of-powers problem, and would be consistent with this Court's view that "[a]ttorney's fee determinations . . . are `collateral to the main cause of action' and `uniquely separable from the cause of action to be proved at trial.' " Landgraf v. USI Film Products, 511 U. S., at 277 (quoting White v. New Hampshire Dept. of Employment Security, 455 U.S. 445, 451-452 (1982)).[8] The dissent's perception that retroactive reopening provisions are to be found all about us is perhaps attributable to its inversion of the statutory presumption regarding retroactivity. Thus, it asserts that Rule 60(b) must be retroactive, since "[n]to a single word in its text suggests that it does not apply to judgments entered prior to its effective date." 237 Post, at 256-257. This reverses the traditional rule, confirmed only last Term, that statutes do not apply retroactively unless Congress expressly states that they do. See Landgraf, supra, at 277-280. The dissent adds that "the traditional construction of remedial measures . . . support[s] construing [Rule 60(b)] to apply to past as well as future judgments." Post, at 257. But reliance on the vaguely remedial purpose of a statute to defeat the presumption against retroactivity was rejected in the companion cases of Landgraf, see 511 U.S., at 284-286, and n. 37, and Rivers v. Roadway Express, 511 U. S., at 309-313. Cf. Landgraf, supra, at 297 (Blackmun, J., dissenting) ("This presumption [against retroactive legislation] need not be applied to remedial legislation . . .") (citing Sampeyreac, 7 Pet., at 238). The dissent sets forth a number of hypothetical horribles flowing from our assertedly "rigid holding"for example, the inability to set aside a civil judgment that has become final during a period when a natural disaster prevented the timely filing of a certiorari petition. Post, at 262. That is horrible not because of our holding, but because the underlying statute itself enacts a "rigid" jurisdictional bar to entertaining untimely civil petitions. Congress could undoubtedly enact prospective legislation permitting, or indeed requiring, this Court to make equitable exceptions to an otherwise applicable rule of finality, just as district courts do pursuant to Rule 60(b). It is no indication whatever of the invalidity of the constitutional rule which we announce, that it produces unhappy consequences when a legislature lacks foresight, and acts belatedly to remedy a deficiency in the law. That is a routine result of constitutional rules. See, e. g., Collins v. Youngblood, 497 U.S. 37 (1990) (Ex Post Facto Clause precludes postoffense statutory extension of a criminal sentence); United States Trust Co. of N. Y. v. New Jersey, 431 U.S. 1 (1977) (Contract Clause prevents retroactive alteration of contract with state bondholders); Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555, 589- 238 590, 601-602 (1935) (Takings Clause invalidates a bankruptcy law that abrogates a vested property interest). See also United States v. Security Industrial Bank, 459 U.S. 70, 78 (1982). Finally, we may respond to the suggestion of the concurrence that this case should be decided more narrowly. The concurrence is willing to acknowledge only that "sometimes Congress lacks the power under Article I to reopen an otherwise closed court judgment," post, at 240-241. In the present context, what it considers critical is that § 27A(b) is "exclusively retroactive" and "appli[es] to a limited number of individuals." Post, at 241. If Congress had only "provid[ed] some of the assurances against `singling out' that ordinary legislative activity normally providessay, prospectivity and general applicabilitywe might have a different case." Post, at 243. This seems to us wrong in both fact and law. In point of fact, § 27A(b) does not "single out" any defendant for adverse treatment (or any plaintiff for favorable treatment). Rather, it identifies a class of actions (those filed pre-Lampf, timely under applicable state law, but dismissed as time barred post-Lampf ) which embraces many plaintiffs and defendants, the precise number and identities of whom we even now do not know. The concurrence's contention that the number of covered defendants "is too small (compared with the number of similar, uncovered firms) to distinguish meaningfully the law before us from a similar law aimed at a single closed case," post, at 244 (emphasis added), renders the concept of "singling out" meaningless. More importantly, however, the concurrence's point seems to us wrong in law. To be sure, the class of actions identified by § 27A(b) could have been more expansive (e. g., all actions that were or could have been filed pre-Lampf ) and the provision could have been written to have prospective as well as retroactive effect (e. g., "all post-Lampf dismissed actions, plus all future actions under Rule 10b-5, shall be timely if brought within 30 years of the injury"). But it escapes us 239 how this could in any way cause the statute to be any less an infringement upon the judicial power. The nub of that infringement consists not of the Legislature's acting in a particularized and hence (according to the concurrence) nonlegislative fashion;[9] but rather of the Legislature's nullifying prior, authoritative judicial action. It makes no difference whatever to that separation-of-powers violation that it is in gross rather than particularized (e. g., "we hereby set aside all hitherto entered judicial orders"), or that it is not accompanied by an "almost" violation of the Bill of Attainder Clause, or an "almost" violation of any other constitutional provision. Ultimately, the concurrence agrees with our judgment only "[b]ecause the law before us embodies risks of the very sort that our Constitution's `separation of powers' prohibition seeks to avoid." Post, at 246. But the doctrine of separation of powers is a structural safeguard rather than a remedy to be applied only when specific harm, or risk of specific harm, can be identified. In its major features (of which the conclusiveness of judicial judgments is assuredly one) it is a prophylactic device, establishing high walls and clear distinctions because low walls and vague distinctions will not be judicially defensible in the heat of interbranch conflict. It is interesting that the concurrence quotes twice, and cites without quotation a third time, the opinion of Justice Powell in 240 INS v. Chadha, 462 U. S., at 959. But Justice Powell wrote only for himself in that case. He alone expressed dismay that "[t]he Court's decision . . . apparently will invalidate every use of the legislative veto," and opined that "[t]he breadth of this holding gives one pause." Ibid. It did not give pause to the six-Justice majority, which put an end to the long-simmering interbranch dispute that would otherwise have been indefinitely prolonged. We think legislated invalidation of judicial judgments deserves the same categorical treatment accorded by Chadha to congressional invalidation of executive action. The delphic alternative suggested by the concurrence (the setting aside of judgments is all right so long as Congress does not "impermissibly tr[y] to apply, as well as make, the law," post, at 241) simply prolongs doubt and multiplies confrontation. Separation of powers, a distinctively American political doctrine, profits from the advice authored by a distinctively American poet: Good fences make good neighbors. * * We know of no previous instance in which Congress has enacted retroactive legislation requiring an Article III court to set aside a final judgment, and for good reason. The Constitution's separation of legislative and judicial powers denies it the authority to do so. Section 27A(b) is unconstitutional to the extent that it requires federal courts to reopen final judgments entered before its enactment. The judgment of the Court of Appeals is affirmed. It is so ordered. Justice Breyer, concurring in the judgment.	The question presented in this case is whether 27A(b) of the Securities Exchange Act of 1934, to the extent that it requires federal courts to reopen final judgments in private civil actions under 10(b) of the Act, contravenes the Constitution's separation of powers or the Due Process Clause of the Fifth Amendment. I In 1987, petitioners brought a civil action against respondents in the United States District Court for the Eastern District of Kentucky. The complaint alleged that in 1983 and 1984 respondents had committed fraud and deceit in the sale of stock in violation of 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 of the Securities and Exchange Commission. The case was mired in pretrial proceedings in the District Court until June 20, when we decided Pleva, Lipkind, Prupis & held that "[l]itigation instituted pursuant to 10(b) and Rule 10b-5 must be commenced within one year after the discovery of the facts constituting the violation and within three years after such violation." at 214 364. We applied that holding to the plaintiff-respondents in itself, found their suit untimely, and reinstated a summary judgment previously entered in favor of the defendant-petitioners. On the same day we decided James B. Beam Distilling in which a majority of the Court held, albeit in different opinions, that a new rule of federal law that is applied to the parties in the case announcing the rule must be applied as well to all cases pending on direct review. See The joint effect of and Beam was to mandate application of the 1-year/3-year limitations period to petitioners' suit. The District Court, finding that petitioners' claims were untimely under the rule, dismissed their action with prejudice on August 13, Petitioners filed no appeal; the judgment accordingly became final 30 days later. See 28 U.S. C. 2107(a) ( ed., Supp. V); On December 19, the President signed the Federal Deposit Insurance Corporation Improvement Act of Section 476 of the Acta section that had nothing to do with FDIC improvementsbecame 27A of the Securities Exchange Act of 1934, and was later codified as 15 U.S. C. aa-1 ( ed., Supp. V). It provides: "(a) Effect on pending causes of action "The limitation period for any private civil action implied under section j(b) of this title [ 10(b) of the Securities Exchange Act of 1934] that was commenced on or before June 19, shall be the limitation period provided by the laws applicable in the jurisdiction, including principles of retroactivity, as such laws existed on June 19, "(b) Effect on dismissed causes of action "Any private civil action implied under section j(b) of this title that was commenced on or before June 19, 215 "(1) which was dismissed as time barred subsequent to June 19, and "(2) which would have been timely filed under the limitation period provided by the laws applicable in the jurisdiction, including principles of retroactivity, as such laws existed on June 19, "shall be reinstated on motion by the plaintiff not later than 60 days after December 19," On February 11, 19, petitioners returned to the District Court and filed a motion to reinstate the action previously dismissed with prejudice. The District Court found that the conditions set out in 27A(b)(1) and (2) were met, so that petitioners' motion was required to be granted by the terms of the statute. It nonetheless denied the motion, agreeing with respondents that 27A(b) is unconstitutional. Memorandum Opinion and Order, Civ. Action No. 87-438 (ED Ky., Apr. 13, 19). The United States Court of Appeals for the Sixth Circuit affirmed. We granted certiorari.[1] II Respondents bravely contend that 27A(b) does not require federal courts to reopen final judgments, arguing first that the reference to "the laws applicable in the jurisdiction. as such laws existed on June 19, " (the day before was decided) may reasonably be construed to refer precisely to the limitations period provided in itself, in which case petitioners' action was time barred even under 216 27A.[2] It is true that "[a] judicial construction of a statute is an authoritative statement of what the statute meant before as well as after the decision of the case giving rise to that construction." ; see also But respondents' argument confuses the question of what the law in fact was on June 19, with the distinct question of what 27A means by its reference to what the law was. We think it entirely clear that it does not mean the law enunciated in for two independent reasons. First, provides a uniform, national statute of limitations (instead of using the applicable state limitations period, as lower federal courts had previously done. See and n. 1). If the statute referred to that law, its reference to the "laws applicable in the jurisdiction " would be quite inexplicable. Second, if the statute refers to the law enunciated in it is utterly without effect, a result to be avoided if possible. American Nat. Red (19); see 2A N. Singer, Sutherland on Statutory Construction 46.06 It would say, in subsection (a), that the limitations period is what the Supreme Court has held to be the limitations period; and in subsection (b), that suits dismissed as untimely under which were timely under (a null set) shall be reinstated. To avoid a constitutional question by holding that Congress enacted, and the President approved, a blank sheet of paper would indeed constitute "disingenuous evasion." George Moore Ice Cream 217 As an alternative reason why 27A(b) does not require the reopening of final judgments, respondents suggest that the subsection applies only to cases still pending in the federal courts when 27A was enacted. This has only half the defect of the first argument, for it makes only half of 27A purposeless 27A(b). There is no need to "reinstate" actions that are still pending; 27A(a) (the new statute of limitations) could and would be applied by the courts of appeals. On respondents' reading, the only consequence of 27A(b) would be the negligible one of permitting the plaintiff in the pending appeal from a statute-of-limitations dismissal to return immediately to the district court, instead of waiting for the court of appeals' reversal. To enable 27A(b) to achieve such an insignificant consequence, one must disregard the language of the provision, which refers generally to suits "dismissed as time barred." It is perhaps arguable that this does not include suits that are not yet finally dismissed, i. e., suits still pending on appeal; but there is no basis for the contention that it includes only those. In short, there is no reasonable construction on which 27A(b) does not require federal courts to reopen final judgments in suits dismissed with prejudice by virtue of III Respondents submit that 27A(b) violates both the separation of powers and the Due Process Clause of the Fifth Amendment.[3] Because the latter submission, if correct, might dictate a similar result in a challenge to state legislation under the Fourteenth Amendment, the former is the narrower ground for adjudication of the constitutional questions in the case, and we therefore consider it first. We conclude that in 27A(b) Congress has exceeded its authority by requiring the federal courts to exercise * "[t]he judicial Power of the United States," U. S. Const., Art. III, 1, in a manner repugnant to the text, structure, and traditions of Article III. Our decisions to date have identified two types of legislation that require federal courts to exercise the judicial power in a manner that Article III forbids. The first appears in United where we refused to give effect to a statute that was said "[to] prescribe rules of decision to the Judicial Department of the government in cases pending before it." Whatever the precise scope of Klein, however, later decisions have made clear that its prohibition does not take hold when Congress "amend[s] applicable law." (19). Section 27A(b) indisputably does set out substantive legal standards for the Judiciary to apply, and in that sense changes the law (even if solely retroactively). The second type of unconstitutional restriction upon the exercise of judicial power identified by past cases is exemplified by Hayburn's (17), which stands for the principle that Congress cannot vest review of the decisions of Article III courts in officials of the Executive Branch. See, e. g., Chicago & Southern Air Lines, Yet under any application of 27A(b) only courts are involved; no officials of other departments sit in direct review of their decisions. Section 27A(b) therefore offends neither of these previously established prohibitions. We think, however, that 27A(b) offends a postulate of Article III just as deeply rooted in our law as those we have mentioned. Article III establishes a "judicial department" with the "province and duty to say what the law is" in particular cases and controversies. The record of history shows that the Framers crafted this charter of the judicial department with an expressed understanding that it gives the Federal Judiciary the power, not merely to rule on cases, but to de- 219 cide them, subject to review only by superior courts in the Article III hierarchywith an understanding, in short, that "a judgment conclusively resolves the case" because "a `judicial Power' is one to render dispositive judgments." Easterbrook, Presidential Review, 6 By retroactively commanding the federal courts to reopen final judgments, Congress has violated this fundamental principle. A The Framers of our Constitution lived among the ruins of a system of intermingled legislative and judicial powers, which had been prevalent in the colonies long before the Revolution, and which after the Revolution had produced factional strife and partisan oppression. In the 17th and 18th centuries colonial assemblies and legislatures functioned as courts of equity of last resort, hearing original actions or providing appellate review of judicial judgments. G. The Creation of the American Republic 6-17, pp. 154-155 (1969). Often, however, they chose to correct the judicial process through special bills or other enacted legislation. It was common for such legislation not to prescribe a resolution of the dispute, but rather simply to set aside the judgment and order a new trial or appeal. M. Clarke, Parliamentary Privilege in the American Colonies 49-51 (1943). See, e. g., Judicial Action by the Provincial Legislature of Massachusetts, ; 5 Laws of New Hampshire, Including Public and Private Acts, Resolves, Votes, Etc., 14-17 Thus, as described in our discussion of Hayburn's such legislation bears not on the problem of interbranch review but on the problem of finality of judicial judgments. The vigorous, indeed often radical, populism of the revolutionary legislatures and assemblies increased the frequency of legislative correction of judgments. See also "The period 10-17 was a period of `constitutional reaction' " to these developments, "which leaped suddenly to its climax in the Philadelphia Convention." E. Corwin, The Doctrine of Judicial Review 37 (1914). Voices from many quarters, official as well as private, decried the increasing legislative interference with the private-law judgments of the courts. In 16, the Vermont Council of Censors issued an "Address of the Council of Censors to the Freemen of the State of Vermont" to fulfill the council's duty, under the State Constitution of 14, to report to the people "`whether the legislative and executive branches of government have assumed to themselves, or exercised, other or greater powers than they are entitled to by the Constitution.' " Vermont State Papers 9-16, pp. 531, 533 (Slade ed. 1823). A principal method of usurpation identified by the censors was "[t]he instances. of judgments being vacated by legislative acts." The council delivered an opinion "that the General Assembly, in all the instances where they have vacated judgments, recovered in due course of law, (except where the particular circumstances of the case evidently made it necessary to grant a new trial) have exercised a power not delegated, or intended to be delegated, to them, by the Constitution. It supercedes the necessity of any other law than the pleasure of the Assembly, and of any other court than themselves: for it is an imposition on the suitor, to give him the trouble of obtaining, after several expensive trials, a final judgment agreeably to the known established laws of the land; if the Legislature, by a sovereign act, can interfere, reverse the judgment, and decree in such manner, as they, unfettered by rules, shall think proper." So too, the famous report of the Pennsylvania Council of Censors in 14 detailed the abuses of legislative interference with the courts at the behest of private interests and 221 factions. As the General Assembly had (they wrote) made a custom of "extending their deliberations to the cases of individuals," the people had "been taught to consider an application to the legislature, as a shorter and more certain mode of obtaining relief from hardships and losses, than the usual process of law." The censors noted that because "favour and partiality have, from the nature of public bodies of men, predominated in the distribution of this relief [t]hese dangerous procedures have been too often recurred to, since the revolution." Report of the Committee of the Council of Censors 6 (Bailey ed. 14). This sense of a sharp necessity to separate the legislative from the judicial power, prompted by the crescendo of legislative interference with private judgments of the courts, triumphed among the Framers of the new Federal Constitution. See Corwin, The Progress of Constitutional Theory Between the Declaration of Independence and the Meeting of the Philadelphia Convention, 30 Am. Hist. Rev. 511, 514-517 (15). The Convention made the critical decision to establish a judicial department independent of the Legislative Branch by providing that "the judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." Before and during the debates on ratification, Madison, Jefferson, and Hamilton each wrote of the factional disorders and disarray that the system of legislative equity had produced in the years before the framing; and each thought that the separation of the legislative from the judicial power in the new Constitution would cure them. Madison's Federalist No. 48, the famous description of the process by which "[t]he legislative department is every where extending the sphere of its activity, and drawing all power into its impetuous vortex," referred to the report of the Pennsylvania Council of Censors to show that in that State "cases belonging to the judiciary department [had been] frequently drawn within legislative cognizance and determination." The Federalist 222 No. 48, pp. 333, 337 (J. Cooke ed. 1961). Madison relied as well on Jefferson's Notes on the State of Virginia, which mentioned, as one example of the dangerous concentration of governmental powers into the hands of the legislature, that "the Legislature in many instances decided rights which should have been left to judiciary controversy."[4] If the need for separation of legislative from judicial power was plain, the principal effect to be accomplished by that separation was even plainer. As Hamilton wrote in his exegesis of Article III, 1, in The Federalist No. 81: "It is not true that the parliament of Great Britain, or the legislatures of the particular states, can rectify the exceptionable decisions of their respective courts, in any other sense than might be done by a future legislature of the United States. The theory neither of the British, nor the state constitutions, authorises the revisal of a judicial sentence, by a legislative act. A legislature without exceeding its province cannot reverse a determination once made, in a particular case; though it may prescribe a new rule for future cases." The Federalist No. 81, p. 545 (J. Cooke ed. 1961). The essential balance created by this allocation of authority was a simple one. The Legislature would be possessed of power to "prescrib[e] the rules by which the duties and rights of every citizen are to be regulated," but the power of "[t]he interpretation of the laws" would be "the proper and peculiar province of the courts." No. at 523, 525. 223 See also Corwin, The Doctrine of Judicial Review, at 42. The Judiciary would be, "from the nature of its functions, the [department] least dangerous to the political rights of the constitution," not because its acts were subject to legislative correction, but because the binding effect of its acts was limited to particular cases and controversies. Thus, "though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter: so long as the judiciary remains truly distinct from both the legislative and executive." The Federalist No. at 522, 523. Judicial decisions in the period immediately after ratification of the Constitution confirm the understanding that it forbade interference with the final judgments of courts. In the Legislature of Connecticut had enacted a statute that set aside the final judgment of a state court in a civil case. Although the issue before this Court was the construction of the Ex Post Facto Clause, Art. I, 10, Justice Iredell (a leading Federalist who had guided the Constitution to ratification in North Carolina) noted that "the Legislature of [Connecticut] has been in the uniform, uninterrupted, habit of exercising a general superintending power over its courts of law, by granting new trials. It may, indeed, appear strange to some of us, that in any form, there should exist a power to grant, with respect to suits depending or adjudged, new rights of trial, new privileges of proceeding, not previously recognized and regulated by positive institutions The power is judicial in its nature; and whenever it is exercised, as in the present instance, it is an exercise of judicial, not of legislative, authority." The state courts of the era showed a similar understanding of the separation of powers, in decisions that drew little distinction between the federal and state constitutions. To 224 choose one representative example from a multitude: In Bates v. 2 Chipman 77 (Vt. 1824), a special Act of the Vermont Legislature authorized a party to appeal from the judgment of a court even though, under the general law, the time for appeal had expired. The court, noting that the unappealed judgment had become final, set itself the question "Have the Legislature power to vacate or annul an existing judgment between party and party?" The answer was emphatic: "The necessity of a distinct and separate existence of the three great departments of government. had been proclaimed and enforced by Blackstone, Jefferson and Madison," and had been "sanctioned by the people of the United States, by being adopted in terms more or less explicit, into all their written constitutions." The power to annul a final judgment, the court held (citing Hayburn's ), was "an assumption of Judicial power," and therefore forbidden. Bates v. For other examples, see Merrill v. Sherburne, 1 N. H. 199 (1818) (legislature may not vacate a final judgment and grant a new trial); Lewis v. Webb, 3 Greenleaf 299 (Me. 1825) (same); T. Cooley, Constitutional Limitations 95-96 (1868) (collecting cases); J. Sutherland, Statutory Construction 18-19 (J. Lewis ed. 1) (same). By the middle of the 19th century, the constitutional equilibrium created by the separation of the legislative power to make general law from the judicial power to apply that law in particular cases was so well understood and accepted that it could survive even Dred In his First Inaugural Address, President Lincoln explained why the political branches could not, and need not, interfere with even that infamous judgment: "I do not forget the position assumed by some, that constitutional questions are to be decided by the Supreme Court; nor do I deny that such decisions must be binding in any case, upon the parties to a suit, as to the object of that suit And while it is obviously possible that 225 such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be over-ruled, and never become a precedent for other cases, can better be borne than could the evils of a different practice." 4 R. Basler, The Collected Works of Abraham Lincoln 268 (1953) (First Inaugural Address 1861). And the great constitutional scholar Thomas Cooley addressed precisely the question before us in his 1868 treatise: "If the legislature cannot thus indirectly control the action of the courts, by requiring of them a construction of the law according to its own views, it is very plain it cannot do so directly, by setting aside their judgments, compelling them to grant new trials, ordering the discharge of offenders, or directing what particular steps shall be taken in the progress of a judicial inquiry." Cooley, B Section 27A(b) effects a clear violation of the separationof-powers principle we have just discussed. It is, of course, retroactive legislation, that is, legislation that prescribes what the law was at an earlier time, when the act whose effect is controlled by the legislation occurredin this case, the filing of the initial Rule 10b-5 action in the District Court. When retroactive legislation requires its own application in a case already finally adjudicated, it does no more and no less than "reverse a determination once made, in a particular case." The Federalist No. 81, at 545. Our decisions stemming from Hayburn's although their precise holdings are not strictly applicable here, see have uniformly provided fair warning that such an act exceeds the powers of Congress. See, e. g., Chicago & Southern Air Lines, ; United ; Gordon v. United States, 117 U. S. Appx. 697, 700-704 (1) (opinion of Taney, C. J.) (judgments of Article III courts are "final and conclusive upon the rights of the parties"); Hayburn's ("[R]evision and control" of Article III judgments is "radically inconsistent with the independence of that judicial power which is vested in the courts"); ("[N]o decision of any court of the United States can, under any circumstances, be liable to a revision, or even suspension, by the [l]egislature itself, in whom no judicial power of any kind appears to be vested"). See also ("[I]t is urged, that the act of congress cannot have the effect and operation to annul the judgment of the court already rendered, or the rights determined thereby This, as a general proposition, is certainly not to be denied, especially as it respects adjudication upon the private rights of parties. When they have passed into judgment the right becomes absolute, and it is the duty of the court to enforce it"). Today those clear statements must either be honored, or else proved false. It is true, as petitioners contend, that Congress can always revise the judgments of Article III courts in one sense: When a new law makes clear that it is retroactive, an appellate court must apply that law in reviewing judgments still on appeal that were rendered before the law was enacted, and must alter the outcome accordingly. See United ; Since that is 227 so, petitioners argue, federal courts must apply the "new" law created by 27A(b) in finally adjudicated cases as well; for the line that separates lower court judgments that are pending on appeal (or may still be appealed), from lower court judgments that are final, is determined by statute, see, e. g., 28 U.S. C. 2107(a) (30-day time limit for appeal to federal court of appeals), and so cannot possibly be a constitutional line. But a distinction between judgments from which all appeals have been forgone or completed, and judgments that remain on appeal (or subject to being appealed), is implicit in what Article III creates: not a batch of unconnected courts, but a judicial department composed of "inferior Courts" and "one supreme Court." Within that hierarchy, the decision of an inferior court is not (unless the time for appeal has expired) the final word of the department as a whole. It is the obligation of the last court in the hierarchy that rules on the case to give effect to Congress's latest enactment, even when that has the effect of overturning the judgment of an inferior court, since each court, at every level, must "decide according to existing laws." Schooner Peggy, Having achieved finality, however, a judicial decision becomes the last word of the judicial department with regard to a particular case or controversy, and Congress may not declare by retroactive legislation that the law applicable to that very case was something other than what the courts said it was. Finality of a legal judgment is determined by statute, just as entitlement to a government benefit is a statutory creation; but that no more deprives the former of its constitutional significance for separation-ofpowers analysis than it deprives the latter of its significance for due process purposes. See, e. g., Cleveland Bd. of ; To be sure, 27A(b) reopens (or directs the reopening of) final judgments in a whole class of cases rather than in a particular suit. We do not see how that makes any difference. 228 The separation-of-powers violation here, if there is any, consists of depriving judicial judgments of the conclusive effect that they had when they were announced, not of acting in a mannerviz., with particular rather than general effectthat is unusual (though, we must note, not impossible) for a legislature. To be sure, a general statute such as this one may reduce the perception that legislative interference with judicial judgments was prompted by individual favoritism; but it is legislative interference with judicial judgments nonetheless. Not favoritism, nor even corruption, but power is the object of the separation-of-powers prohibition. The prohibition is violated when an individual final judgment is legislatively rescinded for even the very best of reasons, such as the legislature's genuine conviction (supported by all the law professors in the land) that the judgment was wrong; and it is violated 40 times over when 40 final judgments are legislatively dissolved. It is irrelevant as well that the final judgments reopened by 27A(b) rested on the bar of a statute of limitations. The rules of finality, both statutory and judge made, treat a dismissal on statute-of-limitations grounds the same way they treat a dismissal for failure to state a claim, for failure to prove substantive liability, or for failure to prosecute: as a judgment on the merits. See, e. g., Fed. Rule Civ. Proc. 41(b); United Petitioners suggest, directly or by implication, two reasons why a merits judgment based on this particular ground may be uniquely subject to congressional nullification. First, there is the fact that the length and indeed even the very existence of a statute of limitations upon a federal cause of action is entirely subject to congressional control. But virtually all of the reasons why a final judgment on the merits is rendered on a federal claim are subject to congressional control. Congress can eliminate, for example, a particular element of a cause of action that plaintiffs have found it difficult to establish; or an evidentiary rule that has often 229 excluded essential testimony; or a rule of offsetting wrong (such as contributory negligence) that has often prevented recovery. To distinguish statutes of limitations on the ground that they are mere creatures of Congress is to distinguish them not at all. The second supposedly distinguishing characteristic of a statute of limitations is that it can be extended, without violating the Due Process Clause, after the cause of the action arose and even after the statute itself has expired. See, e. g., Chase Securities But that also does not set statutes of limitations apart. To mention only one other broad category of judgment-producing legal rule: Rules of pleading and proof can similarly be altered after the cause of action arises, and n. 29, and even, if the statute clearly so requires, after they have been applied in a case but before final judgment has been entered. Petitioners' principle would therefore lead to the conclusion that final judgments rendered on the basis of a stringent (or, alternatively, liberal) rule of pleading or proof may be set aside for retrial under a new liberal (or, alternatively, stringent) rule of pleading or proof. This alone provides massive scope for undoing final judgments and would substantially subvert the doctrine of separation of powers. The central theme of the dissent is a variant on these arguments. The dissent maintains that "announced" a new statute of limitations, post, at 246, in an act of "judicial. lawmaking," post, at 247, that "changed the law," post, at 250. That statement, even if relevant, would be wrong. The point decided in had never before been addressed by this Court, and was therefore an open question, no matter what the lower courts had held at the time. But the more important point is that as such is irrelevant to this case. The dissent itself perceives that "[w]e would have the same issue to decide had Congress enacted the rule," and that the rule's genesis in judicial lawmaking rather than, shall we say, legislative lawmaking, "should not 230 affect the separation-of-powers analysis." Post, at 247. Just so. The issue here is not the validity or even the source of the legal rule that produced the Article III judgments, but rather the immunity from legislative abrogation of those judgments themselves. The separation-of-powers question before us has nothing to do with and the dissent's attack on has nothing to do with the question before us. C Apart from the statute we review today, we know of no instance in which Congress has attempted to set aside the final judgment of an Article III court by retroactive legislation. That prolonged reticence would be amazing if such interference were not understood to be constitutionally proscribed. The closest analogue that the Government has been able to put forward is the statute at issue in United That law required the Court of Claims, "`[n]otwithstanding any other provision of law [to]review on the merits, without regard to the defense of res judicata or collateral estoppel,' " a Sioux claim for just compensation from the United States even though the Court of Claims had previously heard and rejected that very claim. We considered and rejected separation-of-powers objections to the statute based upon Hayburn's and United See -3. The basis for our rejection was a line of precedent (starting with Cherokee (16)) that stood, we said, for the proposition that "Congress has the power to waive the res judicata effect of a prior judgment entered in the Government's favor on a claim against the United States." Sioux And our holding was as narrow as the precedent on which we had relied: "In sum, Congress' mere waiver of the res judicata effect of a prior judicial decision rejecting the validity of a legal claim against the United States does 231 not violate the doctrine of separation of powers."[5] The Solicitor General suggests that even if Sioux is read in accord with its holding, it nonetheless establishes that Congress may require Article III courts to reopen their final judgments, since "if res judicata were compelled by Article III to safeguard the structural independence of the courts, the doctrine would not be subject to waiver by any party litigant." Brief for United States 27 ). But the proposition that legal defenses based upon doctrines central to the courts' structural independence can never be waived simply does not accord with our cases. Certainly one such doctrine consists of the "judicial Power" to disregard an unconstitutional statute, see 1 Cranch, at ; yet none would suggest that a litigant may never waive the defense that a statute is unconstitutional. See, e. g., G. D. Searle & What may follow from our holding that the judicial power unalterably includes the power to render final judgments is not that waivers of res judicata are always impermissible, but rather that, as many Federal Courts of Appeals have held, waivers of res judicata need not always be accepted that trial courts may in appropriate cases raise the res judicata bar on their own motion. See, e. g., ; In re Medomak Canning, 2 F.2d 895, ; Holloway Constr. Waiver subject to the control of the 232 courts themselves would obviously raise no issue of separation of powers, and would be precisely in accord with the language of the decision that the Solicitor General relies upon. We held in Schor that, although a litigant had consented to bring a state-law counterclaim before an Article I tribunal, 4 U.S., 9, we would nonetheless choose to consider his Article III challenge, because "when these Article III limitations are at issue, notions of consent and waiver cannot be dispositive, " See also (finding a "rare cas[e] in which we should exercise our discretion" to hear a waived claim based on the Appointments Clause, Art. II, 2, cl. 2).[6] Petitioners also rely on a miscellany of decisions upholding legislation that altered rights fixed by the final judgments of non-Article III courts, see, e. g., ; or administrative agencies, Paramino Lumber or that altered the prospective effect of injunctions entered by Article III courts, Wheeling & Belmont Bridge These cases distinguish themselves; nothing in our holding today calls them into question. Petitioners rely on general statements from some of these cases that legislative annulment of final judgments is not an exercise of judicial power. But even if it were our practice to decide cases by weight of prior dicta, we would find the many dicta that reject congressional 233 power to revise the judgments of Article III courts to be the more instructive authority. See[7] Finally, petitioners liken 27A(b) to Federal Rule of Civil Procedure 60(b), which authorizes courts to relieve parties from a final judgment for grounds such as excusable neglect, newly discovered evidence, fraud, or "any other reason justifying relief" We see little resemblance. Rule 60(b), which authorizes discretionary judicial revision of judgments in the listed situations and in other "`extraordinary circumstances,' " does not impose any legislative mandate to reopen upon the courts, but merely reflects and 234 confirms the courts' own inherent and discretionary power, "firmly established in English practice long before the foundation of our Republic," to set aside a judgment whose enforcement would work inequity. Hazel-Atlas Glass v. Hartford-Empire 322 U.S. Thus, Rule 60(b), and the tradition that it embodies, would be relevant refutation of a claim that reopening a final judgment is always a denial of property without due process; but they are irrelevant to the claim that legislative instruction to reopen impinges upon the independent constitutional authority of the courts. The dissent promises to provide "[a] few contemporary examples" of statutes retroactively requiring final judgments to be reopened, "to demonstrate that [such statutes] are ordinary products of the exercise of legislative power." Post, at 256. That promise is not kept. The relevant retroactivity, of course, consists not of the requirement that there be set aside a judgment that has been rendered prior to its being setting aside for example, a statute passed today which says that all default judgments rendered in the future may be reopened within 90 days after their entry. In that sense, all requirements to reopen are "retroactive," and the designation is superfluous. Nothing we say today precludes a law such as that. The finality that a court can pronounce is no more than what the law in existence at the time of judgment will permit it to pronounce. If the law then applicable says that the judgment may be reopened for certain reasons, that limitation is built into the judgment itself, and its finality is so conditioned. The present case, however, involves a judgment that Congress subjected to a reopening requirement which did not exist when the judgment was pronounced. The dissent provides not a single clear prior instance of such congressional action. The dissent cites, first, Rule 60(b), which it describes as a "familiar remedial measure." As we have just discussed, Rule 60(b) does not provide a new remedy at all, but 235 is simply the recitation of pre-existing judicial power. The same is true of another of the dissent's examples, 28 U.S. C. 2255, which provides federal prisoners a statutory motion to vacate a federal sentence. This procedure "`restates, clarifies and simplifies the procedure in the nature of the ancient writ of error coram nobis.'" United (quoting the 1948 Reviser's Note to 2255). It is meaningless to speak of these statutes as applying "retroactively," since they simply codified judicial practice that pre-existed. Next, the dissent cites the provision of the Soldiers' and Sailors' Civil Relief Act of 1940, 50 U.S. C. App. 520(4), which authorizes courts, upon application, to reopen judgments against members of the Armed Forces entered while they were on active duty. It could not be clearer, however, that this provision was not retroactive. It says: "If any judgment shall be rendered in any action or proceeding governed by this section against any person in military service during the period of such service such judgment may be opened" (Emphasis added.) The dissent also cites, post, at 258, a provision of the Handicapped Children's Protection Act of 1986, 20 U.S. C. 1415(e)(4)(B) ( ed. and Supp. V), which provided for the award of attorney's fees under the Education for All Handicapped Children Act of 1975, 20 U.S. C. 1411 et seq. ( ed. and Supp. V). This changed the law regarding attorney's fees under the Education for All Handicapped Children Act, after our decision in 468 U.S. 9 found such fees to be unavailable. The provision of the Statutes at Large adopting this amendment to the United States Code specified, in effect, that it would apply not only to proceedings brought after its enactment, but also to proceedings pending at the time of, or brought after, the decision in Smith. See The amendment says nothing about reopening final judgments, and the retroactivity provision may well mean nothing 236 more than that it applies not merely to new suits commenced after the date of its enactment, but also to previously filed (but not yet terminated) suits of the specified sort. This interpretation would be consistent with the only case the dissent cites, which involved a court-entered consent decree not yet fully executed. Alternatively, the statute can perhaps be understood to create a new cause of action for attorney's fees attributable to already concluded litigation. That would create no separation-of-powers problem, and would be consistent with this Court's view that "[a]ttorney's fee determinations are `collateral to the main cause of action' and `uniquely separable from the cause of action to be proved at trial.' " ).[8] The dissent's perception that retroactive reopening provisions are to be found all about us is perhaps attributable to its inversion of the statutory presumption regarding retroactivity. Thus, it asserts that Rule 60(b) must be retroactive, since "[n]to a single word in its text suggests that it does not apply to judgments entered prior to its effective date." 237 Post, at 256-257. This reverses the traditional rule, confirmed only last Term, that statutes do not apply retroactively unless Congress expressly states that they do. See The dissent adds that "the traditional construction of remedial measures support[s] construing [Rule 60(b)] to apply to past as well as future judgments." Post, at 257. But reliance on the vaguely remedial purpose of a statute to defeat the presumption against retroactivity was rejected in the companion cases of see -286, and n. 37, and Rivers v. Roadway -313. Cf. ("This presumption [against retroactive legislation] need not be applied to remedial legislation") (citing 7 Pet., at ). The dissent sets forth a number of hypothetical horribles flowing from our assertedly "rigid holding"for example, the inability to set aside a civil judgment that has become final during a period when a natural disaster prevented the timely filing of a certiorari petition. Post, at 262. That is horrible not because of our holding, but because the underlying statute itself enacts a "rigid" jurisdictional bar to entertaining untimely civil petitions. Congress could undoubtedly enact prospective legislation permitting, or indeed requiring, this Court to make equitable exceptions to an otherwise applicable rule of finality, just as district courts do pursuant to Rule 60(b). It is no indication whatever of the invalidity of the constitutional rule which we announce, that it produces unhappy consequences when a legislature lacks foresight, and acts belatedly to remedy a deficiency in the law. That is a routine result of constitutional rules. See, e. g., ; United States Trust of N. U.S. 1 ; Louisville Joint Stock Land 589- 590, 601-602 See also United Finally, we may respond to the suggestion of the concurrence that this case should be decided more narrowly. The concurrence is willing to acknowledge only that "sometimes Congress lacks the power under Article I to reopen an otherwise closed court judgment," post, at 240-241. In the present context, what it considers critical is that 27A(b) is "exclusively retroactive" and "appli[es] to a limited number of individuals." Post, at 241. If Congress had only "provid[ed] some of the assurances against `singling out' that ordinary legislative activity normally providessay, prospectivity and general applicabilitywe might have a different case." Post, at 243. This seems to us wrong in both fact and law. In point of fact, 27A(b) does not "single out" any defendant for adverse treatment (or any plaintiff for favorable treatment). Rather, it identifies a class of actions (those filed pre-, timely under applicable state law, but dismissed as time barred post- ) which embraces many plaintiffs and defendants, the precise number and identities of whom we even now do not know. The concurrence's contention that the number of covered defendants "is too small (compared with the number of similar, uncovered firms) to distinguish meaningfully the law before us from a similar law aimed at a single closed case," post, at renders the concept of "singling out" meaningless. More importantly, however, the concurrence's point seems to us wrong in law. To be sure, the class of actions identified by 27A(b) could have been more expansive (e. g., all actions that were or could have been filed pre- ) and the provision could have been written to have prospective as well as retroactive effect (e. g., "all post- dismissed actions, plus all future actions under Rule 10b-5, shall be timely if brought within 30 years of the injury"). But it escapes us 239 how this could in any way cause the statute to be any less an infringement upon the judicial power. The nub of that infringement consists not of the Legislature's acting in a particularized and hence (according to the concurrence) nonlegislative fashion;[9] but rather of the Legislature's nullifying prior, authoritative judicial action. It makes no difference whatever to that separation-of-powers violation that it is in gross rather than particularized (e. g., "we hereby set aside all hitherto entered judicial orders"), or that it is not accompanied by an "almost" violation of the Bill of Attainder Clause, or an "almost" violation of any other constitutional provision. Ultimately, the concurrence agrees with our judgment only "[b]ecause the law before us embodies risks of the very sort that our Constitution's `separation of powers' prohibition seeks to avoid." Post, at 246. But the doctrine of separation of powers is a structural safeguard rather than a remedy to be applied only when specific harm, or risk of specific harm, can be identified. In its major features (of which the conclusiveness of judicial judgments is assuredly one) it is a prophylactic device, establishing high walls and clear distinctions because low walls and vague distinctions will not be judicially defensible in the heat of interbranch conflict. It is interesting that the concurrence quotes twice, and cites without quotation a third time, the opinion of Justice Powell in 240 But Justice Powell wrote only for himself in that case. He alone expressed dismay that "[t]he Court's decision apparently will invalidate every use of the legislative veto," and opined that "[t]he breadth of this holding gives one pause." It did not give pause to the six-Justice majority, which put an end to the long-simmering interbranch dispute that would otherwise have been indefinitely prolonged. We think legislated invalidation of judicial judgments deserves the same categorical treatment accorded by to congressional invalidation of executive action. The delphic alternative suggested by the concurrence (the setting aside of judgments is all right so long as Congress does not "impermissibly tr[y] to apply, as well as make, the law," post, at 241) simply prolongs doubt and multiplies confrontation. Separation of powers, a distinctively American political doctrine, profits from the advice authored by a distinctively American poet: Good fences make good neighbors. * * * We know of no previous instance in which Congress has enacted retroactive legislation requiring an Article III court to set aside a final judgment, and for good reason. The Constitution's separation of legislative and judicial powers denies it the authority to do so. Section 27A(b) is unconstitutional to the extent that it requires federal courts to reopen final judgments entered before its enactment. The judgment of the Court of Appeals is affirmed. It is so ordered. Justice Breyer, concurring in the judgment.	2,025
Justice Breyer	concurring	false	Plaut v. Spendthrift Farm, Inc.	1995-04-18	null	https://www.courtlistener.com/opinion/117916/plaut-v-spendthrift-farm-inc/	https://www.courtlistener.com/api/rest/v3/clusters/117916/	1,995	1994-040	3	7	2	I agree with the majority that § 27A(b) of the Securities Exchange Act of 1934, 15 U.S. C. § 78aa-1 (1988 ed., Supp. V) (hereinafter § 27A(b)) is unconstitutional. In my view, the separation of powers inherent in our Constitution means that at least sometimes Congress lacks the power under Article 241 I to reopen an otherwise closed court judgment. And the statutory provision here at issue, § 27A(b), violates a basic "separation-of-powers" principleone intended to protect individual liberty. Three features of this lawits exclusively retroactive effect, its application to a limited number of individuals, and its reopening of closed judgments taken together, show that Congress here impermissibly tried to apply, as well as make, the law. Hence, § 27A(b) falls outside the scope of Article I. But, it is far less clear, and unnecessary for the purposes of this case to decide, that separation of powers "is violated" whenever an "individual final judgment is legislatively rescinded" or that it is "violated 40 times over when 40 final judgments are legislatively dissolved." See ante, at 228. I therefore write separately. The majority provides strong historical evidence that Congress lacks the power simply to reopen, and to revise, final judgments in individual cases. See ante, at 219-222. The Framers would have hesitated to lodge in the Legislature both that kind of power and the power to enact general laws, as part of their effort to avoid the "despotic government" that accompanies the "accumulation of all powers, legislative, executive, and judiciary, in the same hands." The Federalist No. 47, p. 241 (J. Gideon ed. 1831) (J. Madison); id., No. 48, at 249 (quoting T. Jefferson, Notes on the State of Virginia). For one thing, the authoritative application of a general law to a particular case by an independent judge, rather than by the legislature itself, provides an assurance that even an unfair law at least will be applied evenhandedly according to its terms. See, e. g., 1 Montesquieu, The Spirit of Laws 174 (T. Nugent transl. 1886) (describing one objective of the "separation of powers" as preventing "the same monarch or senate," having "enact[ed] tyrannical laws" from "execut[ing] them in a tyrannical manner"); W. Gwyn, The Meaning of the Separation of Powers 42-43, 104-106 (1965) (discussing historically relevant sources that explain one purpose of separation of powers as helping to assure an "impartial rule of 242 law"). For another thing, as Justice Powell has pointed out, the Constitution's "separation-of-powers" principles reflect, in part, the Framers' "concern that a legislature should not be able unilaterally to impose a substantial deprivation on one person." INS v. Chadha, 462 U.S. 919, 962 (1983) (opinion concurring in judgment). The Framers "expressed" this principle, both in "specific provisions, such as the Bill of Attainder Clause," and in the Constitution's "general allocation of power." Ibid.; see United States v. Brown, 381 U.S. 437, 442 (1965) (Bill of Attainder Clause intended to implement the separation of powers, acting as "a general safeguard against legislative exercise of the judicial function"); Fletcher v. Peck, 6 Cranch 87, 136 (1810) (Marshall, C. J.) ("It is the peculiar province of the legislature to prescribe general rules for the government of society; the application of those rules to individuals in society would seem to be the duty of other departments"); cf. Hurtado v. California, 110 U.S. 516, 535-536 (1884). Despite these two important "separation-of-powers" concerns, sometimes Congress can enact legislation that focuses upon a small group, or even a single individual. See, e. g., Nixon v. Administrator of General Services, 433 U.S. 425, 468-484 (1977); Selective Service System v. Minnesota Public Interest Research Group, 468 U.S. 841, 846-856 (1984); Brown, supra, at 453-456. Congress also sometimes passes private legislation. See Chadha, supra, at 966, n. 9 (Powell, J., concurring in judgment) ("When Congress grants particular individuals relief or benefits under itsspending power, the danger of oppressive action that the separation of powers was designed to avoid is not implicated"). And, sometimes Congress can enact legislation that, as a practical matter, radically changes the effect of an individual, previously entered court decree. See Pennsylvania v. Wheeling & Belmont Bridge Co., 18 How. 421 (1856). Statutes that apply prospectively and (in part because of that prospectivity) to an open-ended class of persons, however, are more than simply 243 an effort to apply, person by person, a previously enacted law, or to single out for oppressive treatment one, or a handful, of particular individuals. Thus, it seems to me, if Congress enacted legislation that reopened an otherwise closed judgment but in a way that mitigated some of the here relevant "separation-of-powers" concerns, by also providing some of the assurances against "singling out" that ordinary legislative activity normally providessay, prospectivity and general applicabilitywe might have a different case. Cf. Brown, supra, at 461 ("Congress must accomplish [its desired] results by rules of general applicability. It cannot specify the people upon whom the sanction it prescribes is to be levied"). Because such legislation, in light of those mitigating circumstances, might well present a different constitutional question, I do not subscribe to the Court's more absolute statement. The statute before us, however, has no such mitigating features. It reopens previously closed judgments. It is entirely retroactive, applying only to those Rule 10b-5 actions actually filed, on or before (but on which final judgments were entered after) June 19, 1991. See 15 U.S. C. § 78j(b) and 17 CFR 240.10b-5 (1994). It lacks generality, for it applies only to a few individual instances. See Hearings on H. R. 3185 before the Subcommittee on Telecommunications and Finance of the House of Representatives Committee on Energy and Commerce, 102d Cong., 1st Sess., 3-4 (1991) (listing, by case name, only 15 cases that had been dismissed on the basis of Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350 (1991)). And, it is underinclusive, for it excludes from its coverage others who, relying upon pre-Lampf limitations law, may have failed to bring timely securities fraud actions against any other of the Nation's hundreds of thousands of businesses. I concede that its coverage extends beyond a single individual to many potential plaintiffs in these class actions. But because the legislation disfavors not plaintiffs but defendants, I should think 244 that the latter number is the more relevant. And, that number is too small (compared with the number of similar, uncovered firms) to distinguish meaningfully the law before us from a similar law aimed at a single closed case. Nor does the existence of § 27A(a), which applies to Rule 10b-5 actions pending at the time of the legislation, change this conclusion. That provision seems aimed at too few additional individuals to mitigate the low level of generality of § 27A(b). See Hearings on H. R. 3185, supra, at 5-6 (listing 17 cases in which dismissal motions based on Lampf were pending). The upshot is that, viewed in light of the relevant, libertyprotecting objectives of the "separation of powers," this case falls directly within the scope of language in this Court's cases suggesting a restriction on Congress' power to reopen closed court judgments. See, e. g., Chicago & Southern Air Lines, Inc. v. Waterman S. S. Corp., 333 U.S. 103, 113 (1948) ("Judgments within the powers vested in courts by the Judiciary Article of the Constitution may not lawfully be revised [or] overturned . . . by another Department of Government"); Wheeling & Belmont Bridge Co., supra, at 431 ("[I]f the remedy in this case had been an action at law, and a judgment rendered in favor of the plaintiff for damages, the right to these would have passed beyond the reach of the power of congress"); Hayburn's Case, 2 Dall. 409, 413 (1792) (letter from Justice Iredell and District Judge Sitgreaves to President Washington) ("[N]o decision of any court of the United States can, under any circumstances, in our opinion, agreeable to the Constitution, be liable to a revision, or even suspension, by the Legislature itself"). At the same time, because the law before us both reopens final judgments and lacks the liberty-protecting assurances that prospectivity and greater generality would have provided, we need not, and we should not, go furtherto make of the reopening itself, an absolute, always determinative distinction, a "prophylactic device," or a foundation for the building of a new "high wal[l]" between the branches. 245 Ante, at 239. Indeed, the unnecessary building of such walls is, in itself, dangerous, because the Constitution blends, as well as separates, powers in its effort to create a government that will work for, as well as protect the liberties of, its citizens. See The Federalist No. 48 (J. Madison). That doctrine does not "divide the branches into watertight compartments," nor "establish and divide fields of black and white." Springer v. Philippine Islands, 277 U.S. 189, 209, 211 (1928) (Holmes, J., dissenting); see also Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring) (referring to the need for "workable government"); id., at 596-597 (Frankfurter, J., concurring); Mistretta v. United States, 488 U.S. 361, 381 (1989) (the doctrine does not create a "hermetic division among the Branches" but "a carefully crafted system of checked and balanced power within each Branch"). And, important separation-of-powers decisions of this Court have sometimes turned, not upon absolute distinctions, but upon degree. See, e. g., Crowell v. Benson, 285 U.S. 22, 48-54 (1932); A. L. A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 551-555 (1935) (Cardozo, J., concurring). As the majority invokes the advice of an American poet, one might consider as well that poet's caution, for he not only notes that "Something there is that doesn't love a wall," but also writes, "Before I built a wall I'd ask to know/ What I was walling in or walling out." R. Frost, Mending Wall, The New Oxford Book of American Verse 395-396 (R. Ellmann ed. 1976). Finally, I note that the cases the dissent cites are distinguishable from the one before us. Sampeyreac v. United States, 7 Pet. 222 (1833), considered a law similar to § 27A(b) (it reopened a set of closed judgments in fraud cases), but the Court did not reach the here relevant issue. Rather, the Court rested its conclusion upon the fact that Sampeyreac was not "a real person," while conceding that, were he real, the case "might present a different question." Id., at 238239. Freeborn v. Smith, 2 Wall. 160 (1865), which involved 246 an Article I court, upheld a law that applied to all cases pending on appeal (in the Supreme Court) from the territory of Nevada, irrespective of the causes of action at issue or which party was seeking review. See id., at 162. That law had generality, a characteristic that helps to avoid the problem of legislatively singling out a few individuals for adverse treatment. See Chadha, 462 U. S., at 966 (Powell, J., concurring in judgment). Neither did United States v. Sioux Nation, 448 U.S. 371 (1980), involve legislation that adversely treated a few individuals. Rather, it permitted the reopening of a case against the United States. See id., at 391. Because the law before us embodies risks of the very sort that our Constitution's "separation-of-powers" prohibition seeks to avoid, and because I can find no offsetting legislative safeguards that normally offer assurances that minimize those risks, I agree with the Court's conclusion and I join its judgment.	I agree with the majority that 27A(b) of the Securities Exchange Act of 1934, 15 U.S. C. 78aa-1 (1988 ed., Supp. V) (hereinafter 27A(b)) is unconstitutional. In my view, the separation of powers inherent in our Constitution means that at least sometimes Congress lacks the power under Article 241 I to reopen an otherwise closed court judgment. And the statutory provision here at issue, 27A(b), violates a basic "separation-of-powers" principleone intended to protect individual liberty. Three features of this lawits exclusively retroactive effect, its application to a limited number of individuals, and its reopening of closed judgments taken together, show that Congress here impermissibly tried to apply, as well as make, the law. Hence, 27A(b) falls outside the scope of Article I. But, it is far less clear, and unnecessary for the purposes of this case to decide, that separation of powers "is violated" whenever an "individual final judgment is legislatively rescinded" or that it is "violated 40 times over when 40 final judgments are legislatively dissolved." See ante, at 228. I therefore write separately. The majority provides strong historical evidence that Congress lacks the power simply to reopen, and to revise, final judgments in individual cases. See ante, at 219-222. The Framers would have hesitated to lodge in the Legislature both that kind of power and the power to enact general laws, as part of their effort to avoid the "despotic government" that accompanies the "accumulation of all powers, legislative, executive, and judiciary, in the same hands." The Federalist No. 47, p. 241 (J. Gideon ed. 1831) (J. Madison); No. 48, at 249 (quoting T. Jefferson, Notes on the State of Virginia). For one thing, the authoritative application of a general law to a particular case by an independent judge, rather than by the legislature itself, provides an assurance that even an unfair law at least will be applied evenhandedly according to its terms. See, e. g., 1 Montesquieu, The Spirit of Laws 174 (T. Nugent transl. 1886) (describing one objective of the "separation of powers" as preventing "the same monarch or senate," having "enact[ed] tyrannical laws" from "execut[ing] them in a tyrannical manner"); W. Gwyn, The Meaning of the Separation of Powers 42-43, 104-106 (discussing historically relevant sources that explain one purpose of separation of powers as helping to assure an "impartial rule of 242 law"). For another thing, as Justice Powell has pointed out, the Constitution's "separation-of-powers" principles reflect, in part, the Framers' "concern that a legislature should not be able unilaterally to impose a substantial deprivation on one person." The Framers "expressed" this principle, both in "specific provisions, such as the Bill of Attainder Clause," and in the Constitution's "general allocation of power." Ibid.; see United ; ("It is the peculiar province of the legislature to prescribe general rules for the government of society; the application of those rules to individuals in society would seem to be the duty of other departments"); cf. Despite these two important "separation-of-powers" concerns, sometimes Congress can enact legislation that focuses upon a small group, or even a single individual. See, e. g., ; Selective Service ; Congress also sometimes passes private legislation. See ("When Congress grants particular individuals relief or benefits under itsspending power, the danger of oppressive action that the separation of powers was designed to avoid is not implicated"). And, sometimes Congress can enact legislation that, as a practical matter, radically changes the effect of an individual, previously entered court decree. See Statutes that apply prospectively and (in part because of that prospectivity) to an open-ended class of persons, however, are more than simply 243 an effort to apply, person by person, a previously enacted law, or to single out for oppressive treatment one, or a handful, of particular individuals. Thus, it seems to me, if Congress enacted legislation that reopened an otherwise closed judgment but in a way that mitigated some of the here relevant "separation-of-powers" concerns, by also providing some of the assurances against "singling out" that ordinary legislative activity normally providessay, prospectivity and general applicabilitywe might have a different case. Cf. Because such legislation, in light of those mitigating circumstances, might well present a different constitutional question, I do not subscribe to the Court's more absolute statement. The statute before us, however, has no such mitigating features. It reopens previously closed judgments. It is entirely retroactive, applying only to those Rule 10b-5 actions actually filed, on or before (but on which final judgments were entered after) June 19, 1991. See 15 U.S. C. 78j(b) and 17 CFR 240.10b-5 (1994). It lacks generality, for it applies only to a few individual instances. See Hearings on H. R. before the Subcommittee on Telecommunications and Finance of the House of Representatives Committee on Energy and Commerce, 102d Cong., 1st Sess., 3-4 ). And, it is underinclusive, for it excludes from its coverage others who, relying upon pre-Lampf limitations law, may have failed to bring timely securities fraud actions against any other of the Nation's hundreds of thousands of businesses. I concede that its coverage extends beyond a single individual to many potential plaintiffs in these class actions. But because the legislation disfavors not plaintiffs but defendants, I should think 244 that the latter number is the more relevant. And, that number is too small (compared with the number of similar, uncovered firms) to distinguish meaningfully the law before us from a similar law aimed at a single closed case. Nor does the existence of 27A(a), which applies to Rule 10b-5 actions pending at the time of the legislation, change this conclusion. That provision seems aimed at too few additional individuals to mitigate the low level of generality of 27A(b). See Hearings on H. R. The upshot is that, viewed in light of the relevant, libertyprotecting objectives of the "separation of powers," this case falls directly within the scope of language in this Court's cases suggesting a restriction on Congress' power to reopen closed court judgments. See, e. g., Chicago & Southern Air Lines, ; Wheeling & Belmont Bridge ; Hayburn's Case, ("[N]o decision of any court of the United States can, under any circumstances, in our opinion, agreeable to the Constitution, be liable to a revision, or even suspension, by the Legislature itself"). At the same time, because the law before us both reopens final judgments and lacks the liberty-protecting assurances that prospectivity and greater generality would have provided, we need not, and we should not, go furtherto make of the reopening itself, an absolute, always determinative distinction, a "prophylactic device," or a foundation for the building of a new "high wal[l]" between the branches. 245 Ante, at 239. Indeed, the unnecessary building of such walls is, in itself, dangerous, because the Constitution blends, as well as separates, powers in its effort to create a government that will work for, as well as protect the liberties of, its citizens. See The Federalist No. 48 (J. Madison). That doctrine does not "divide the branches into watertight compartments," nor "establish and divide fields of black and white." ; see also Youngstown Sheet & Tube v. Sawyer, (referring to the need for "workable government"); ; And, important separation-of-powers decisions of this Court have sometimes turned, not upon absolute distinctions, but upon degree. See, e. g., ; A. L. A. Schechter Poultry As the majority invokes the advice of an American poet, one might consider as well that poet's caution, for he not only notes that "Something there is that doesn't love a wall," but also writes, "Before I built a wall I'd ask to know/ What I was walling in or walling out." R. Frost, Mending Wall, The New Oxford Book of American Verse 395-396 (R. Ellmann ed. 1976). Finally, I note that the cases the dissent cites are distinguishable from the one before us. considered a law similar to 27A(b) (it reopened a set of closed judgments in fraud cases), but the Court did not reach the here relevant issue. Rather, the Court rested its conclusion upon the fact that Sampeyreac was not "a real person," while conceding that, were he real, the case "might present a different question." which involved 246 an Article I court, upheld a law that applied to all cases pending on appeal (in the Supreme Court) from the territory of Nevada, irrespective of the causes of action at issue or which party was seeking review. See That law had generality, a characteristic that helps to avoid the problem of legislatively singling out a few individuals for adverse treatment. See Neither did United involve legislation that adversely treated a few individuals. Rather, it permitted the reopening of a case against the United States. See Because the law before us embodies risks of the very sort that our Constitution's "separation-of-powers" prohibition seeks to avoid, and because I can find no offsetting legislative safeguards that normally offer assurances that minimize those risks, I agree with the Court's conclusion and I join its judgment.	2,026
Justice Stevens	dissenting	false	Plaut v. Spendthrift Farm, Inc.	1995-04-18	null	https://www.courtlistener.com/opinion/117916/plaut-v-spendthrift-farm-inc/	https://www.courtlistener.com/api/rest/v3/clusters/117916/	1,995	1994-040	3	7	2	On December 19, 1991, Congress enacted § 27A of the Securities Exchange Act of 1934, 15 U.S. C. § 78aa-1 (1988 ed., Supp. V) (hereinafter 1991 amendment), to remedy a flaw in the limitations rule this Court announced on June 20, 1991, in Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350 (1991). In Lampf the Court replaced the array of state statutes of limitations that had governed shareholder actions under the Securities Exchange Act of 1934, 15 U.S. C. § 78j(b), and Rule 10b-5, 17 CFR 240.10b-5 (1994) (hereinafter 10b-5 actions), with a uniform federal limitations rule. Congress found only one flaw in the Court's new rule: its failure to exempt pending cases from its operation. Accordingly, without altering the prospective effect of the Lampf rule, the 1991 amendment remedied its flaw by providing that pre-Lampf law should determine the limitations period applicable to all cases that had 247 been pending on June 20, 1991both those that remained pending on December 19, 1991, when § 27A was enacted, and those that courts dismissed between June 20 and December 19, 1991. Today the Court holds that the 1991 amendment violates the Constitution's separation of powers because, by encompassing the dismissed claims, it requires courts to reopen final judgments in private civil actions. Section 27A is a statutory amendment to a rule of law announced by this Court. The fact that the new rule announced in Lampf was a product of judicial, rather than congressional, lawmaking should not affect the separation-ofpowers analysis. We would have the same issue to decide had Congress enacted the Lampf rule but, as a result of inadvertence or perhaps a scrivener's error, failed to exempt pending cases, as is customary when limitations periods are shortened.[1] In my opinion, if Congress had retroactively restored rights its own legislation had inadvertently or unfairly impaired, the remedial amendment's failure to exclude dismissed cases from the benefited class would not make it invalid. The Court today faces a materially identical situation and, in my view, reaches the wrong result. Throughout our history, Congress has passed laws that allow courts to reopen final judgments. Such laws characteristically apply to judgments entered before as well as after their enactment. When they apply retroactively, they may raise serious due process questions,[2] but the Court 248 has never invalidated such a law on separation-of-powers grounds until today. Indeed, only last Term we recognized Congress' ample power to enact a law that "in effect `restored' rights that [a party] reasonably and in good faith thought he possessed before the surprising announcement" of a Supreme Court decision. Rivers v. Roadway Express, Inc., 511 U.S. 298, 310 (1994) (discussing Frisbie v. Whitney, 9 Wall. 187 (1870)). We conditioned our unambiguous restatement of the proposition that "Congress had the power to enact legislation that had the practical effect of restoring the status quo retroactively," 511 U.S., at 310, only on Congress' clear expression of its intent to do so. A large class of investors reasonably and in good faith thought they possessed rights of action before the surprising announcement of the Lampf rule on June 20, 1991. When it enacted the 1991 amendment, Congress clearly expressed its intent to restore the rights Lampf had denied the aggrieved class. Section 27A comported fully with Rivers and with other precedents in which we consistently have recognized Congress' power to enact remedial statutes that set aside classes of final judgments. The only remarkable feature of 249 this enactment is the fact that it remedied a defect in a new judge-made rule rather than in a statute. The familiar history the Court invokes, involving colonial legislatures' ad hoc decisions of individual cases, "`unfettered by rules,' " ante, at 220 (quoting Vermont State Papers 17791786, p. 540 (Slade ed. 1823)), provides no support for its holding. On the contrary, history and precedent demonstrate that Congress may enact laws that establish both substantive rules and procedures for reopening final judgments. When it enacted the 1991 amendment to the Lampf rule, Congress did not encroach on the judicial power. It decided neither the merits of any 10b-5 claim nor even whether any such claim should proceed to decision on the merits. It did provide that the rule governing the timeliness of 10b-5 actions pending on June 19, 1991, should be the pre-Lampf statute of limitations, and it also established a procedure for Article III courts to apply in determining whether any dismissed case should be reinstated. Congress' decision to extend that rule and procedure to 10b-5 actions dismissed during the brief period between this Court's law-changing decision in Lampf and Congress' remedial action is not a sufficient reason to hold the statute unconstitutional. I Respondents conducted a public offering of common stock in 1983. Petitioners, suing on behalf of themselves and other purchasers of the stock, filed a 10b-5 action in 1987 in the United States District Court for the Eastern District of Kentucky, alleging violations of substantive federal rules that had been in place since 1934. Respondents moved to dismiss the complaint as untimely because petitioners had filed it more than three years after the events in dispute. At that time, settled law in Kentucky and elsewhere in the United States directed federal courts to determine statutes of limitations applicable to 10b-5 actions by reference to 250 state law.[3] The relevant Kentucky statute provided a 3year limitations period,[4] which petitioners contended ran from the time the alleged fraud was or should have been discovered. A Magistrate agreed with petitioners and recommended denial of respondents' motion to dismiss, but by 1991 the District Court had not yet ruled on that issue. The factual question whether petitioners should have discovered respondents' alleged 10b-5 violations more than three years before they filed suit remained open for decision by an Article III judge on June 20, 1991. On that day, this Court's decision in Lampf changed the law. The Court concluded that every 10b-5 action is time barred unless brought within three years of the alleged violation and one year of its discovery. Moreover, it applied that novel rule to pending cases. As Justice O'Connor pointed out in her dissent, the Court held the plaintiffs' suit "time barred under a limitations period that did not exist before," a holding that "depart[ed] drastically from our established practice and inflict[ed] an injustice on the [plaintiffs]." Lampf, 501 U. S., at 369.[5] The inequitable consequences of Lampf reached beyond the parties to that case, 251 injuring a large class of litigants that includes petitioners. Without resolving the factual issue that would have determined the timeliness of petitioners' complaint before Lampf, the District Court dismissed the instant action as untimely under the new limitations period dictated by this Court. Because Lampf had deprived them of any nonfrivolous basis for an appeal, petitioners acquiesced in the dismissal, which therefore became final on September 12, 1991. Congress responded to Lampf by passing § 27A, which became effective on December 19, 1991. The statute changed the substantive limitations law, restoring the pre-Lampf limitations rule for two categories of 10b-5 actions that had been pending on June 19, 1991. Subsection (a) of § 27A applies to cases that were still pending on December 19, 1991. The Courts of Appeals have uniformly upheld the constitutionality of that subsection,[6] and its validity is not challenged in this case. Subsection (b) applies to actions, like the instant case, that (1) were dismissed after June 19, 1991, and (2) would have been timely under the pre-Lampf regime. This subsection authorized the district courts to reinstate dismissed cases if the plaintiff so moved within 60 days after the effective date of § 27A. The amendment was not selfexecuting: Unless the plaintiff both filed a timely motion for reinstatement and then satisfied the court that the complaint had been timely filed under applicable pre-Lampf law, the dismissal would remain in effect. In this case petitioners made the required showing, but the District Court refused to reinstate their case. Instead, 252 it held § 27A(b) unconstitutional. 789 F. Supp. 231 (ED Ky. 1992). The Court of Appeals for the Sixth Circuit, contrary to an earlier decision of the Fifth Circuit, affirmed. 1 F.3d 1487 (1993). II Aside from § 27A(b), the Court claims to "know of no instance in which Congress has attempted to set aside the final judgment of an Article III court by retroactive legislation." Ante, at 230. In fact, Congress has done so on several occasions. Section 27A(b) is part of a remedial statute. As early as 1833, we recognized that a remedial statute authorizing the reopening of a final judgment after the time for appeal has expired is "entirely unexceptionable" even though it operates retroactively. "It has been repeatedly decided in this court, that the retrospective operation of such a law forms no objection to it. Almost every law, providing a new remedy, affects and operates upon causes of action existing at the time the law is passed." Sampeyreac v. United States, 7 Pet. 222, 239 (1833). We have upheld remedial statutes that carried no greater cause for separation-of-powers concerns than does § 27A(b); others have provoked no challenges. In contrast, the colonial directives on which the majority relies were nothing like remedial statutes. The remedial 1830 law we construed in Sampeyreac strongly resembled § 27A(b): It authorized a class of litigants to reopen claims, brought under an 1824 statute, that courts had already finally adjudicated. The 1824 statute authorized proceedings to establish title to certain lands in the State of Missouri and the territory of Arkansas. It provided for an appeal to this Court within one year after the entry of the judgment or decree, "and should no appeal be taken, the judgment or decree of the district court shall in like manner be final and conclusive." 7 Pet., at 238. In 1827 the Arkansas Territorial Court entered a decree in favor of one Sampeyreac, over the objection of the United States that the nominal plaintiff was a fictitious person. Because no appeal 253 was taken from that decree, it became final in 1828. In 1830 Congress passed a special statute authorizing the Arkansas court to reopen any decree entered under the 1824 statute if, prior to July 1, 1831, the United States filed a bill of review alleging that the decree had been based on forged evidence of title. The United States filed such a bill and obtained a reversal of the 1827 decree from the Arkansas court. The successors in interest of the fictitious Mr. Sampeyreac argued in this Court that the Arkansas court should not have entertained the Government's bill of review because the 1830 statute "was the exercise of a judicial power, and it is no answer to this objection, that the execution of its provisions is given to a court. The legislature of the union cannot use such a power." Id., at 229. We categorically rejected that argument: "The law of 1830 is in no respect the exercise of judicial powers." Id., at 239. Of course, as the majority notes, ante, at 232-233, the particular decree at stake in Sampeyreac had issued not from an Article III court but from a territorial court. However, our opinion contains no suggestion that Congress' power to authorize the reopening of judgments entered by the Arkansas court was any broader than its power to authorize the reopening of judgments entered under the same statute by the United States District Court in Missouri. Moreover, the relevant judicial power that the 1830 statute arguably supplanted was this Court's Article III appellate jurisdictionwhich, prior to the 1830 enactment, provided the only avenue for review of the trial courts' judgments. Similarly, in Freeborn v. Smith, 2 Wall. 160 (1865), the Court rejected a challenge to an Act of Congress that removed an accidental impediment to the exercise of our appellate jurisdiction. When Congress admitted Nevada into the Union as a State in March 1864, ch. 36, 13 Stat. 30, it neglected to provide for the disposition of pending appeals from final judgments previously entered by the Supreme Court of 254 the Nevada Territory. Accordingly, the Freeborn defendants in error moved to dismiss a writ of error to the territorial court on the ground that we had no power to decide the case. At the suggestion of plaintiffs in error, the Court deferred ruling on the motion until after February 27, 1865, when Congress passed a special statute that authorized the Court to decide this and similar cases.[7] Defendants in error renewed their motion, arguing that Congress could not reopen judgments that were already final and unreviewable because Congress was not competent to exercise judicial power. Defendants in error argued that, "[i]f it be possible for a right to attach itself to a judgment, it has done so here, and there could not be a plainer case of an attempt to destroy it by legislative action." 2 Wall., at 165. The Court, however, noted that the omission in the 1864 statute had left the case "in a very anomalous situation," id., at 174, and that passage of the later statute "was absolutely necessary to remove an impediment in the way of any legal proceeding in the case." Id., at 175. It concluded that such "acts are of a remedial character, and are peculiar subjects of legislation. They are not liable to the imputation of being assumptions of judicial power." Ibid. As in Sampeyreac, although Freeborn involved 255 the review of a judgment entered by a territorial court, the "judicial power" to which the opinion referred was this Court's Article III appellate jurisdiction. If Congress may enact a law authorizing this Court to reopen decisions that we previously lacked power to review, Congress must have the power to let district courts reopen their own judgments. Also apposite is United States v. Sioux Nation, 448 U.S. 371 (1980), which involved the Sioux Nation's longstanding claim that the Government had in 1877 improperly abrogated the treaty by which the Sioux had held title to the Black Hills. The Sioux first brought their claim under a special 1920 jurisdictional statute. The Court of Claims dismissed the suit in 1942, holding that the 1920 Act did not give the court jurisdiction to consider the adequacy of the compensation the Government had paid in 1877. Congress passed a new jurisdictional statute in 1946, and in 1950 the Sioux brought a new action. In 1975 the Court of Claims, although acknowledging the merit of the Sioux's claim, held that the res judicata effect of the 1942 dismissal barred the suit. In response, Congress passed a statute in 1978 that authorized the Court of Claims to take new evidence and instructed it to consider the Sioux's claims on the merits, disregarding res judicata. The Sioux finally prevailed. We held that the 1978 Act did not violate the separation of powers. 448 U.S., at 407. The Court correctly notes, see ante, at 230-231, and n. 5, that our opinion in Sioux Nation prominently discussed precedents establishing Congress' power to waive the res judicata effect of judgments against the United States. We never suggested, however, that those precedents sufficed to overcome the separation-of-powers objections raised against the 1978 Act. Instead, we made extensive comments about the propriety of Congress' action that were as necessary to our holding then as they are salient to the Court's analysis today. In passing the 1978 Act, we held, Congress 256 "only was providing a forum so that a new judicial review of the Black Hills claim could take place. This review was to be based on the facts found by the Court of Claims after reviewing all the evidence, and an application of generally controlling legal principles to those facts. For these reasons, Congress was not reviewing the merits of the Court of Claims' decisions, and did not interfere with the finality of its judgments. "Moreover, Congress in no way attempted to prescribe the outcome of the Court of Claims' new review of the merits." 448 U.S., at 407. Congress observed the same boundaries in enacting § 27A(b). Our opinions in Sampeyreac, Freeborn, and Sioux Nation correctly characterize statutes that specify new grounds for the reopening of final judgments as remedial. Moreover, these precedents correctly identify the unremarkable nature of the legislative power to enact remedial statutes. "[A]cts. . . of a remedial character . . . are the peculiar subjects of legislation. They are not liable to the imputation of being assumptions of judicial power." Freeborn, 2 Wall., at 175. A few contemporary examples of such statutes will suffice to demonstrate that they are ordinary products of the exercise of legislative power. The most familiar remedial measure that provides for reopening of final judgments is Rule 60(b) of the Federal Rules of Civil Procedure. That Rule both codified common-law grounds for relieving a party from a final judgment and added an encompassing reference to "any other reason justifying relief from the operation of the judgment."[8] Not a 257 single word in its text suggests that it does not apply to judgments entered prior to its effective date. On the contrary, the purpose of the Rule, its plain language, and the traditional construction of remedial measures all support construing it to apply to past as well as future judgments. Indeed, because the Rule explicitly abolished the commonlaw writs it replaced, an unintended gap in the law would have resulted if it did not apply retroactively.[9] 258 Other examples of remedial statutes that resemble § 27A include the Soldiers' and Sailors' Civil Relief Act of 1940, 50 U.S. C. App. § 520(4), which authorizes members of the Armed Forces to reopen judgments entered while they were on active duty; the Handicapped Children's Protection Act of 1986, 20 U.S. C. § 1415(e)(4)(B) (1988 ed. and Supp. V), which provided for recovery of attorney's fees under the Education for All Handicapped Children Act of 1975, 20 U.S. C. § 1411 et seq. (1988 ed. and Supp. V);[10] and the federal habeas corpus statute, 28 U.S. C. § 2255, which authorizes federal courts to reopen judgments of conviction. The habeas statute, similarly to Rule 60(b), replaced a common-law writ, see App. to H. R. Rep. No. 308, 80th Cong., 2d Sess., A180 (1947), and thus necessarily applied retroactively.[11] State statutes that authorize the reopening of various types of default judgments [12] and judgments that became final before a party received 259 notice of their entry,[13] as well as provisions for motions to reopen based on newly discovered evidence,[14] further demonstrate the widespread acceptance of remedial statutes that allow courts to set aside final judgments. As in the case of Rule 60(b), logic dictates that these statutes be construed to apply retroactively to judgments that were final at the time of their enactments. All of these remedial statutes announced generally applicable rules of law as well as establishing procedures for reopening final judgments.[15] In contrast, in the examples of colonial legislatures' review of trial courts' judgments on which today's holding rests, the legislatures issued directives in individual cases without purporting either to set forth or to apply any legal standard. Cf. ante, at 219-225; see, e. g., INS v. Chadha, 462 U.S. 919, 961-962 (1983) (Powell, J., concurring in judgment). The principal compendium on which the Court relies, ante, at 219, accurately describes these legislative directives: "In these records, which are of the first quarter of the 18th century, the provincial legislature will often be found acting in a judicial capacity, sometimes trying causes in equity, sometimes granting equity powers to some court of the common law for a particular temporary purpose, and constantly granting appeals, new trials, and other relief from judgments, on equitable 260 grounds." Judicial Action by the Provincial Legislature of Massachusetts, 15 Harv. L. Rev. 208, n. 1 (1902). The Framers' disapproval of such a system of ad hoc legislative review of individual trial court judgments has no bearing on remedial measures such as Rule 60(b) or the 1991 amendment at issue today. The history on which the Court relies provides no support for its holding. III The lack of precedent for the Court's holding is not, of course, a sufficient reason to reject it. Correct application of separation-of-powers principles, however, confirms that the Court has reached the wrong result. As our most recent major pronouncement on the separation of powers noted, "we have never held that the Constitution requires that the three branches of Government `operate with absolute independence.' " Morrison v. Olson, 487 U.S. 654, 693-694 (1988) (quoting United States v. Nixon, 418 U.S. 683, 707 (1974)). Rather, our jurisprudence reflects "Madison's flexible approach to separation of powers." Mistretta v. United States, 488 U.S. 361, 380 (1989). In accepting Madison's conception rather than any "hermetic division among the Branches," id., at 381, "we have upheld statutory provisions that to some degree commingle the functions of the Branches, but that pose no danger of either aggrandizement or encroachment," id., at 382. Today's holding does not comport with these ideals. Section 27A shares several important characteristics with the remedial statutes discussed above. It does not decide the merits of any issue in any litigation but merely removes an impediment to judicial decision on the merits. The impediment it removes would have produced inequity because the statute's beneficiaries did not cause the impediment. It requires a party invoking its benefits to file a motion within a specified time and to convince a court that the statute entitles the party to relief. Most important, § 27A(b) specifies 261 both a substantive rule to govern the reopening of a class of judgmentsthe pre-Lampf limitations ruleand a procedure for the courts to apply in determining whether a particular motion to reopen should be granted. These characteristics are quintessentially legislative. They reflect Congress' fealty to the separation of powers and its intention to avoid the sort of ad hoc excesses the Court rightly criticizes in colonial legislative practice. In my judgment, all of these elements distinguish § 27A from "judicial" action and confirm its constitutionality. A sensible analysis would at least consider them in the balance. Instead, the Court myopically disposes of § 27A(b) by holding that Congress has no power to "requir[e] an Article III court to set aside a final judgment." Ante, at 240. That holding must mean one of two things. It could mean that Congress may not impose a mandatory duty on a court to set aside a judgment even if the court makes a particular finding, such as a finding of fraud or mistake, that Congress has not made. Such a rule, however, could not be correct. Although Rule 60(b), for example, merely authorizes federal courts to set aside judgments after making appropriate findings, Acts of Congress characteristically set standards that judges are obligated to enforce. Accordingly, Congress surely could add to Rule 60(b) certain instances in which courts must grant relief from final judgments if they make particular findingsfor example, a finding that a member of the jury accepted a bribe from the prevailing party. The Court, therefore, must mean to hold that Congress may not unconditionally require an Article III court to set aside a final judgment. That rule is both unwise and beside the point of this case. A simple hypothetical example will illustrate the practical failings of the Court's new rule. Suppose Congress, instead of endorsing the new limitations rule fashioned by the Court in Lampf, had decided to return to the pre-Lampf regime (or perhaps to enact a longer uniform statute). Subsection 262 (a) of § 27A would simply have provided that the law in effect prior to June 19, 1991, would govern the timeliness of all 10b-5 actions. In that event, subsection (b) would still have been necessary to remedy the injustice caused by this Court's failure to exempt pending cases from its new rule. In my judgment, the statutory correction of the inequitable flaw in Lampf would be appropriate remedial legislation whether or not Congress had endorsed that decision's substantive limitations rule. The Court, unfortunately, appears equally consistent: Even though the class of dismissed 10b-5 plaintiffs in my hypothetical would have been subject to the same substantive rule as all other 10b-5 plaintiffs, the Court's reasoning would still reject subsection (b) as an impermissible exercise of "judicial" power. The majority's rigid holding unnecessarily hinders the Government from addressing difficult issues that inevitably arise in a complex society. This Court, for example, lacks power to enlarge the time for filing petitions for certiorari in a civil case after 90 days from the entry of final judgment, no matter how strong the equities. See 28 U.S. C. § 2101(c). If an Act of God, such as a flood or an earthquake, sufficiently disrupted communications in a particular area to preclude filing for several days, the majority's reasoning would appear to bar Congress from addressing the resulting inequity. If Congress passed remedial legislation that retroactively granted movants from the disaster area extra time to file petitions or motions for extensions of time to file, today's holding presumably would compel us to strike down the legislation as an attack on the finality of judgments. Such a ruling, like today's holding, would gravely undermine federal courts' traditional power "to set aside a judgment whose enforcement would work inequity." Ante, at 234.[16] 263 Even if the rule the Court announces today were sound, it would not control the case before us. In order to obtain the benefit of § 27A, petitioners had to file a timely motion and persuade the District Court they had timely filed their complaint under pre-Lampf law. In the judgment of the District Court, petitioners satisfied those conditions. Congress reasonably could have assumed, indeed must have expected, that some movants under § 27A(b) would fail to do so. The presence of an important condition that the District Court must find a movant to have satisfied before it may reopen a judgment distinguishes § 27A from the unconditional congressional directives the Court appears to forbid. Moreover, unlike the colonial legislative commands on which the Court bases its holding, § 27A directed action not in "a civil case," ante, at 223 (discussing Calder v. Bull, 3 Dall. 386 (1798)), but in a large category of civil cases.[17] The Court declares that a legislative direction to reopen a class of 40 cases is 40 times as bad as a direction to reopen a single final judgment because "power is the object of the separation-of-powers prohibition." See ante, at 228. This self-evident observation might be salient if § 27A(b) unconditionally commanded courts to reopen judgments even absent findings that the complaints were timely under pre-Lampf law. But Congress did not decideand could not know how any court would decidethe timeliness issue in any particular 264 case in the affected category. Congress, therefore, had no way to identify which particular plaintiffs would benefit from § 27A. It merely enacted a law that applied a substantive rule to a class of litigants, specified a procedure for invoking the rule, and left particular outcomes to individualized judicial determinationsa classic exercise of legislative power. "All we seek," affirmed a sponsor of § 27A, "is to give the victims [of securities fraud] a fair day in court."[18] A statute, such as § 27A, that removes an unanticipated and unjust impediment to adjudication of a large class of claims on their merits poses no danger of "aggrandizement or encroachment." Mistretta, 488 U. S., at 382.[19] This is particularly true for § 27A in light of Congress' historic primacy over statutes of limitations.[20] The statute contains several checks against the danger of congressional overreaching. The Court in Lampf undertook a legislative function. Essentially, it supplied a statute of limitations for 10b-5 actions. 265 The Court, however, failed to adopt the transition rules that ordinarily attend alterations shortening the time to sue. Congress, in § 27A, has supplied those rules. The statute reflects the ability of two coequal branches to cooperate in providing for the impartial application of legal rules to particular disputes. The Court's mistrust of such cooperation ill serves the separation of powers.[21] IV The Court has drawn the wrong lesson from the Framers' disapproval of colonial legislatures' appellate review of judicial decisions. The Framers rejected that practice, not out of a mechanistic solicitude for "final judgments," but because they believed the impartial application of rules of law, rather 266 than the will of the majority, must govern the disposition of individual cases and controversies. Any legislative interference in the adjudication of the merits of a particular case carries the risk that political power will supplant evenhanded justice, whether the interference occurs before or after the entry of final judgment. Cf. United States v. Klein, 13 Wall. 128 (1872); Hayburn's Case, 2 Dall. 409 (1792). Section 27A(b) neither commands the reinstatement of any particular case nor directs any result on the merits. Congress recently granted a special benefit to a single litigant in a pending civil rights case, but the Court saw no need even to grant certiorari to review that disturbing legislative favor.[22] In an ironic counterpoint, the Court today places a higher priority on protecting the Republic from the restoration to a large class of litigants of the opportunity to have Article III courts resolve the merits of their claims. "We must remember that the machinery of government would not work if it were not allowed a little play in its joints." Bain Peanut Co. of Tex. v. Pinson, 282 U.S. 499, 501 (1931) (Holmes, J.). The three branches must cooperate in order to govern. We should regard favorably, rather than with suspicious hostility, legislation that enables the judiciary to overcome impediments to the performance of its mission of administering justice impartially, even when, as here, this Court has created the impediment.[23] Rigid rules often make good law, but judgments in areas such as the review of potential conflicts among the three coequal branches of the *267 Federal Government partake of art as well as science. That is why we have so often reiterated the insight of Justice Jackson: "The actual art of governing under our Constitution does not and cannot conform to judicial definitions of the power of any of its branches based on isolated clauses or even single Articles torn from context. While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity." Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (concurring opinion). We have the authority to hold that Congress has usurped a judicial prerogative, but even if this case were doubtful I would heed Justice Iredell's admonition in Calder v. Bull, 3 Dall., at 399, that "the Court will never resort to that authority, but in a clear and urgent case." An appropriate regard for the interdependence of Congress and the judiciary amply supports the conclusion that § 27A(b) reflects constructive legislative cooperation rather than a usurpation of judicial prerogatives. Accordingly, I respectfully dissent.	On December 19, 1991, Congress enacted 27A of the Securities Exchange Act of 1934, 15 U.S. C. 78aa-1 (1988 ed., Supp. V) (hereinafter 1991 amendment), to remedy a flaw in the limitations rule this Court announced on June 20, 1991, in Lampf, Pleva, Lipkind, Prupis & In Lampf the Court replaced the array of state statutes of limitations that had governed shareholder actions under the Securities Exchange Act of 1934, 15 U.S. C. 78j(b), and Rule 10b-5, 17 CFR 240.10b-5 (hereinafter 10b-5 actions), with a uniform federal limitations rule. Congress found only one flaw in the Court's new rule: its failure to exempt pending cases from its operation. Accordingly, without altering the prospective effect of the Lampf rule, the 1991 amendment remedied its flaw by providing that pre-Lampf law should determine the limitations period applicable to all cases that had 247 been pending on June 20, 1991both those that remained pending on December 19, 1991, when 27A was enacted, and those that courts dismissed between June 20 and December 19, 1991. Today the Court holds that the 1991 amendment violates the Constitution's separation of powers because, by encompassing the dismissed claims, it requires courts to reopen final judgments in private civil actions. Section 27A is a statutory amendment to a rule of law announced by this Court. The fact that the new rule announced in Lampf was a product of judicial, rather than congressional, lawmaking should not affect the separation-ofpowers analysis. We would have the same issue to decide had Congress enacted the Lampf rule but, as a result of inadvertence or perhaps a scrivener's error, failed to exempt pending cases, as is customary when limitations periods are shortened.[1] In my opinion, if Congress had retroactively restored rights its own legislation had inadvertently or unfairly impaired, the remedial amendment's failure to exclude dismissed cases from the benefited class would not make it invalid. The Court today faces a materially identical situation and, in my view, reaches the wrong result. Throughout our history, Congress has passed laws that allow courts to reopen final judgments. Such laws characteristically apply to judgments entered before as well as after their enactment. When they apply retroactively, they may raise serious due process questions,[2] but the Court 248 has never invalidated such a law on separation-of-powers grounds until today. Indeed, only last Term we recognized Congress' ample power to enact a law that "in effect `restored' rights that [a party] reasonably and in good faith thought he possessed before the surprising announcement" of a Supreme Court decision. We conditioned our unambiguous restatement of the proposition that "Congress had the power to enact legislation that had the practical effect of restoring the status quo retroactively," 511 U.S., at only on Congress' clear expression of its intent to do so. A large class of investors reasonably and in good faith thought they possessed rights of action before the surprising announcement of the Lampf rule on June 20, 1991. When it enacted the 1991 amendment, Congress clearly expressed its intent to restore the rights Lampf had denied the aggrieved class. Section 27A comported fully with Rivers and with other precedents in which we consistently have recognized Congress' power to enact remedial statutes that set aside classes of final judgments. The only remarkable feature of 249 this enactment is the fact that it remedied a defect in a new judge-made rule rather than in a statute. The familiar history the Court invokes, involving colonial legislatures' ad hoc decisions of individual cases, "`unfettered by rules,' " ante, at 220 (quoting Vermont State Papers 17791786, p. 540 (Slade ed. 1823)), provides no support for its holding. On the contrary, history and precedent demonstrate that Congress may enact laws that establish both substantive rules and procedures for reopening final judgments. When it enacted the 1991 amendment to the Lampf rule, Congress did not encroach on the judicial power. It decided neither the merits of any 10b-5 claim nor even whether any such claim should proceed to decision on the merits. It did provide that the rule governing the timeliness of 10b-5 actions pending on June 19, 1991, should be the pre-Lampf statute of limitations, and it also established a procedure for Article III courts to apply in determining whether any dismissed case should be reinstated. Congress' decision to extend that rule and procedure to 10b-5 actions dismissed during the brief period between this Court's law-changing decision in Lampf and Congress' remedial action is not a sufficient reason to hold the statute unconstitutional. I Respondents conducted a public offering of common stock in 1983. Petitioners, suing on behalf of themselves and other purchasers of the stock, filed a 10b-5 action in 1987 in the United States District Court for the Eastern District of Kentucky, alleging violations of substantive federal rules that had been in place since 1934. Respondents moved to dismiss the complaint as untimely because petitioners had filed it more than three years after the events in dispute. At that time, settled law in Kentucky and elsewhere in the United States directed federal courts to determine statutes of limitations applicable to 10b-5 actions by reference to 250 state law.[3] The relevant Kentucky statute provided a 3year limitations period,[4] which petitioners contended ran from the time the alleged fraud was or should have been discovered. A Magistrate agreed with petitioners and recommended denial of respondents' motion to dismiss, but by 1991 the District Court had not yet ruled on that issue. The factual question whether petitioners should have discovered respondents' alleged 10b-5 violations more than three years before they filed suit remained open for decision by an Article III judge on June 20, 1991. On that day, this Court's decision in Lampf changed the law. The Court concluded that every 10b-5 action is time barred unless brought within three years of the alleged violation and one year of its discovery. Moreover, it applied that novel rule to pending cases. As Justice O'Connor pointed out in her dissent, the Court held the plaintiffs' suit "time barred under a limitations period that did not exist before," a holding that "depart[ed] drastically from our established practice and inflict[ed] an injustice on the [plaintiffs]." Lampf,[5] The inequitable consequences of Lampf reached beyond the parties to that case, 251 injuring a large class of litigants that includes petitioners. Without resolving the factual issue that would have determined the timeliness of petitioners' complaint before Lampf, the District Court dismissed the instant action as untimely under the new limitations period dictated by this Court. Because Lampf had deprived them of any nonfrivolous basis for an appeal, petitioners acquiesced in the dismissal, which therefore became final on September 12, 1991. Congress responded to Lampf by passing 27A, which became effective on December 19, 1991. The statute changed the substantive limitations law, restoring the pre-Lampf limitations rule for two categories of 10b-5 actions that had been pending on June 19, 1991. Subsection (a) of 27A applies to cases that were still pending on December 19, 1991. The Courts of Appeals have uniformly upheld the constitutionality of that subsection,[6] and its validity is not challenged in this case. Subsection (b) applies to actions, like the instant case, that (1) were dismissed after June 19, 1991, and (2) would have been timely under the pre-Lampf regime. This subsection authorized the district courts to reinstate dismissed cases if the plaintiff so moved within 60 days after the effective date of 27A. The amendment was not selfexecuting: Unless the plaintiff both filed a timely motion for reinstatement and then satisfied the court that the complaint had been timely filed under applicable pre-Lampf law, the dismissal would remain in effect. In this case petitioners made the required showing, but the District Court refused to reinstate their case. Instead, 252 it held 27A(b) unconstitutional. The Court of Appeals for the Sixth Circuit, contrary to an earlier decision of the Fifth Circuit, affirmed. II Aside from 27A(b), the Court claims to "know of no instance in which Congress has attempted to set aside the final judgment of an Article III court by retroactive legislation." Ante, at 230. In fact, Congress has done so on several occasions. Section 27A(b) is part of a remedial statute. As early as 1833, we recognized that a remedial statute authorizing the reopening of a final judgment after the time for appeal has expired is "entirely unexceptionable" even though it operates retroactively. "It has been repeatedly decided in this court, that the retrospective operation of such a law forms no objection to it. Almost every law, providing a new remedy, affects and operates upon causes of action existing at the time the law is passed." We have upheld remedial statutes that carried no greater cause for separation-of-powers concerns than does 27A(b); others have provoked no challenges. In contrast, the colonial directives on which the majority relies were nothing like remedial statutes. The remedial 1830 law we construed in Sampeyreac strongly resembled 27A(b): It authorized a class of litigants to reopen claims, brought under an 1824 statute, that courts had already finally adjudicated. The 1824 statute authorized proceedings to establish title to certain lands in the State of Missouri and the territory of Arkansas. It provided for an appeal to this Court within one year after the entry of the judgment or decree, "and should no appeal be taken, the judgment or decree of the district court shall in like manner be final and conclusive." In 1827 the Arkansas Territorial Court entered a decree in favor of one Sampeyreac, over the objection of the United States that the nominal plaintiff was a fictitious person. Because no appeal 253 was taken from that decree, it became final in 1828. In 1830 Congress passed a special statute authorizing the Arkansas court to reopen any decree entered under the 1824 statute if, prior to July 1, 1831, the United States filed a bill of review alleging that the decree had been based on forged evidence of title. The United States filed such a bill and obtained a reversal of the 1827 decree from the Arkansas court. The successors in interest of the fictitious Mr. Sampeyreac argued in this Court that the Arkansas court should not have entertained the Government's bill of review because the 1830 statute "was the exercise of a judicial power, and it is no answer to this objection, that the execution of its provisions is given to a court. The legislature of the union cannot use such a power." We categorically rejected that argument: "The law of 1830 is in no respect the exercise of judicial powers." at Of course, as the majority notes, ante, at 232-233, the particular decree at stake in Sampeyreac had issued not from an Article III court but from a territorial court. However, our opinion contains no suggestion that Congress' power to authorize the reopening of judgments entered by the Arkansas court was any broader than its power to authorize the reopening of judgments entered under the same statute by the United States District Court in Missouri. Moreover, the relevant judicial power that the 1830 statute arguably supplanted was this Court's Article III appellate jurisdictionwhich, prior to the 1830 enactment, provided the only avenue for review of the trial courts' judgments. Similarly, in the Court rejected a challenge to an Act of Congress that removed an accidental impediment to the exercise of our appellate jurisdiction. When Congress admitted Nevada into the Union as a State in March 1864, ch. 36, it neglected to provide for the disposition of pending appeals from final judgments previously entered by the Supreme Court of 254 the Nevada Territory. Accordingly, the Freeborn defendants in error moved to dismiss a writ of error to the territorial court on the ground that we had no power to decide the case. At the suggestion of plaintiffs in error, the Court deferred ruling on the motion until after February 27, 1865, when Congress passed a special statute that authorized the Court to decide this and similar cases.[7] Defendants in error renewed their motion, arguing that Congress could not reopen judgments that were already final and unreviewable because Congress was not competent to exercise judicial power. Defendants in error argued that, "[i]f it be possible for a right to attach itself to a judgment, it has done so here, and there could not be a plainer case of an attempt to destroy it by legislative action." The Court, however, noted that the omission in the 1864 statute had left the case "in a very anomalous situation," and that passage of the later statute "was absolutely necessary to remove an impediment in the way of any legal proceeding in the case." It concluded that such "acts are of a remedial character, and are peculiar subjects of legislation. They are not liable to the imputation of being assumptions of judicial power." As in Sampeyreac, although Freeborn involved 255 the review of a judgment entered by a territorial court, the "judicial power" to which the opinion referred was this Court's Article III appellate jurisdiction. If Congress may enact a law authorizing this Court to reopen decisions that we previously lacked power to review, Congress must have the power to let district courts reopen their own judgments. Also apposite is United which involved the Sioux Nation's longstanding claim that the Government had in 1877 improperly abrogated the treaty by which the Sioux had held title to the Black Hills. The Sioux first brought their claim under a special 1920 jurisdictional statute. The Court of Claims dismissed the suit in 1942, holding that the 1920 Act did not give the court jurisdiction to consider the adequacy of the compensation the Government had paid in 1877. Congress passed a new jurisdictional statute in 1946, and in 1950 the Sioux brought a new action. In 1975 the Court of Claims, although acknowledging the merit of the Sioux's claim, held that the res judicata effect of the 1942 dismissal barred the suit. In response, Congress passed a statute in 1978 that authorized the Court of Claims to take new evidence and instructed it to consider the Sioux's claims on the merits, disregarding res judicata. The Sioux finally prevailed. We held that the 1978 Act did not violate the separation of powers. The Court correctly notes, see ante, at 230-231, and n. 5, that our opinion in Sioux Nation prominently discussed precedents establishing Congress' power to waive the res judicata effect of judgments against the United States. We never suggested, however, that those precedents sufficed to overcome the separation-of-powers objections raised against the 1978 Act. Instead, we made extensive comments about the propriety of Congress' action that were as necessary to our holding then as they are salient to the Court's analysis today. In passing the 1978 Act, we held, Congress 256 "only was providing a forum so that a new judicial review of the Black Hills claim could take place. This review was to be based on the facts found by the Court of Claims after reviewing all the evidence, and an application of generally controlling legal principles to those facts. For these reasons, Congress was not reviewing the merits of the Court of Claims' decisions, and did not interfere with the finality of its judgments. "Moreover, Congress in no way attempted to prescribe the outcome of the Court of Claims' new review of the merits." Congress observed the same boundaries in enacting 27A(b). Our opinions in Sampeyreac, Freeborn, and Sioux Nation correctly characterize statutes that specify new grounds for the reopening of final judgments as remedial. Moreover, these precedents correctly identify the unremarkable nature of the legislative power to enact remedial statutes. "[A]cts. of a remedial character are the peculiar subjects of legislation. They are not liable to the imputation of being assumptions of judicial power." Freeborn, 2 Wall., A few contemporary examples of such statutes will suffice to demonstrate that they are ordinary products of the exercise of legislative power. The most familiar remedial measure that provides for reopening of final judgments is Rule 60(b) of the Federal Rules of Civil Procedure. That Rule both codified common-law grounds for relieving a party from a final judgment and added an encompassing reference to "any other reason justifying relief from the operation of the judgment."[8] Not a 257 single word in its text suggests that it does not apply to judgments entered prior to its effective date. On the contrary, the purpose of the Rule, its plain language, and the traditional construction of remedial measures all support construing it to apply to past as well as future judgments. Indeed, because the Rule explicitly abolished the commonlaw writs it replaced, an unintended gap in the law would have resulted if it did not apply retroactively.[9] 258 Other examples of remedial statutes that resemble 27A include the Soldiers' and Sailors' Civil Relief Act of 1940, 50 U.S. C. App. 520(4), which authorizes members of the Armed Forces to reopen judgments entered while they were on active duty; the Handicapped Children's Protection Act of 1986, 20 U.S. C. 1415(e)(4)(B) (1988 ed. and Supp. V), which provided for recovery of attorney's fees under the Education for All Handicapped Children Act of 1975, 20 U.S. C. 1411 et seq. (1988 ed. and Supp. V);[10] and the federal habeas corpus statute, 28 U.S. C. 2255, which authorizes federal courts to reopen judgments of conviction. The habeas statute, similarly to Rule 60(b), replaced a common-law writ, see App. to H. R. Rep. No. 308, 80th Cong., 2d Sess., A180 (1947), and thus necessarily applied retroactively.[11] State statutes that authorize the reopening of various types of default judgments [12] and judgments that became final before a party received 259 notice of their entry,[13] as well as provisions for motions to reopen based on newly discovered evidence,[14] further demonstrate the widespread acceptance of remedial statutes that allow courts to set aside final judgments. As in the case of Rule 60(b), logic dictates that these statutes be construed to apply retroactively to judgments that were final at the time of their enactments. All of these remedial statutes announced generally applicable rules of law as well as establishing procedures for reopening final judgments.[15] In contrast, in the examples of colonial legislatures' review of trial courts' judgments on which today's holding rests, the legislatures issued directives in individual cases without purporting either to set forth or to apply any legal standard. Cf. ante, at 219-225; see, e. g., The principal compendium on which the Court relies, ante, at 219, accurately describes these legislative directives: "In these records, which are of the first quarter of the 18th century, the provincial legislature will often be found acting in a judicial capacity, sometimes trying causes in equity, sometimes granting equity powers to some court of the common law for a particular temporary purpose, and constantly granting appeals, new trials, and other relief from judgments, on equitable 260 grounds." Judicial Action by the Provincial Legislature of Massachusetts, The Framers' disapproval of such a system of ad hoc legislative review of individual trial court judgments has no bearing on remedial measures such as Rule 60(b) or the 1991 amendment at issue today. The history on which the Court relies provides no support for its holding. III The lack of precedent for the Court's holding is not, of course, a sufficient reason to reject it. Correct application of separation-of-powers principles, however, confirms that the Court has reached the wrong result. As our most recent major pronouncement on the separation of powers noted, "we have never held that the Constitution requires that the three branches of Government `operate with absolute independence.' " Rather, our jurisprudence reflects "Madison's flexible approach to separation of powers." In accepting Madison's conception rather than any "hermetic division among the Branches," "we have upheld statutory provisions that to some degree commingle the functions of the Branches, but that pose no danger of either aggrandizement or encroachment," Today's holding does not comport with these ideals. Section 27A shares several important characteristics with the remedial statutes discussed above. It does not decide the merits of any issue in any litigation but merely removes an impediment to judicial decision on the merits. The impediment it removes would have produced inequity because the statute's beneficiaries did not cause the impediment. It requires a party invoking its benefits to file a motion within a specified time and to convince a court that the statute entitles the party to relief. Most important, 27A(b) specifies 261 both a substantive rule to govern the reopening of a class of judgmentsthe pre-Lampf limitations ruleand a procedure for the courts to apply in determining whether a particular motion to reopen should be granted. These characteristics are quintessentially legislative. They reflect Congress' fealty to the separation of powers and its intention to avoid the sort of ad hoc excesses the Court rightly criticizes in colonial legislative practice. In my judgment, all of these elements distinguish 27A from "judicial" action and confirm its constitutionality. A sensible analysis would at least consider them in the balance. Instead, the Court myopically disposes of 27A(b) by holding that Congress has no power to "requir[e] an Article III court to set aside a final judgment." Ante, at 240. That holding must mean one of two things. It could mean that Congress may not impose a mandatory duty on a court to set aside a judgment even if the court makes a particular finding, such as a finding of fraud or mistake, that Congress has not made. Such a rule, however, could not be correct. Although Rule 60(b), for example, merely authorizes federal courts to set aside judgments after making appropriate findings, Acts of Congress characteristically set standards that judges are obligated to enforce. Accordingly, Congress surely could add to Rule 60(b) certain instances in which courts must grant relief from final judgments if they make particular findingsfor example, a finding that a member of the jury accepted a bribe from the prevailing party. The Court, therefore, must mean to hold that Congress may not unconditionally require an Article III court to set aside a final judgment. That rule is both unwise and beside the point of this case. A simple hypothetical example will illustrate the practical failings of the Court's new rule. Suppose Congress, instead of endorsing the new limitations rule fashioned by the Court in Lampf, had decided to return to the pre-Lampf regime (or perhaps to enact a longer uniform statute). Subsection 262 (a) of 27A would simply have provided that the law in effect prior to June 19, 1991, would govern the timeliness of all 10b-5 actions. In that event, subsection (b) would still have been necessary to remedy the injustice caused by this Court's failure to exempt pending cases from its new rule. In my judgment, the statutory correction of the inequitable flaw in Lampf would be appropriate remedial legislation whether or not Congress had endorsed that decision's substantive limitations rule. The Court, unfortunately, appears equally consistent: Even though the class of dismissed 10b-5 plaintiffs in my hypothetical would have been subject to the same substantive rule as all other 10b-5 plaintiffs, the Court's reasoning would still reject subsection (b) as an impermissible exercise of "judicial" power. The majority's rigid holding unnecessarily hinders the Government from addressing difficult issues that inevitably arise in a complex society. This Court, for example, lacks power to enlarge the time for filing petitions for certiorari in a civil case after 90 days from the entry of final judgment, no matter how strong the equities. See 28 U.S. C. 2101(c). If an Act of God, such as a flood or an earthquake, sufficiently disrupted communications in a particular area to preclude filing for several days, the majority's reasoning would appear to bar Congress from addressing the resulting inequity. If Congress passed remedial legislation that retroactively granted movants from the disaster area extra time to file petitions or motions for extensions of time to file, today's holding presumably would compel us to strike down the legislation as an attack on the finality of judgments. Such a ruling, like today's holding, would gravely undermine federal courts' traditional power "to set aside a judgment whose enforcement would work inequity." Ante, at 234.[16] 263 Even if the rule the Court announces today were sound, it would not control the case before us. In order to obtain the benefit of 27A, petitioners had to file a timely motion and persuade the District Court they had timely filed their complaint under pre-Lampf law. In the judgment of the District Court, petitioners satisfied those conditions. Congress reasonably could have assumed, indeed must have expected, that some movants under 27A(b) would fail to do so. The presence of an important condition that the District Court must find a movant to have satisfied before it may reopen a judgment distinguishes 27A from the unconditional congressional directives the Court appears to forbid. Moreover, unlike the colonial legislative commands on which the Court bases its holding, 27A directed action not in "a civil case," ante, at 223 ), but in a large category of civil cases.[17] The Court declares that a legislative direction to reopen a class of 40 cases is 40 times as bad as a direction to reopen a single final judgment because "power is the object of the separation-of-powers prohibition." See ante, at 228. This self-evident observation might be salient if 27A(b) unconditionally commanded courts to reopen judgments even absent findings that the complaints were timely under pre-Lampf law. But Congress did not decideand could not know how any court would decidethe timeliness issue in any particular 264 case in the affected category. Congress, therefore, had no way to identify which particular plaintiffs would benefit from 27A. It merely enacted a law that applied a substantive rule to a class of litigants, specified a procedure for invoking the rule, and left particular outcomes to individualized judicial determinationsa classic exercise of legislative power. "All we seek," affirmed a sponsor of 27A, "is to give the victims [of securities fraud] a fair day in court."[18] A statute, such as 27A, that removes an unanticipated and unjust impediment to adjudication of a large class of claims on their merits poses no danger of "aggrandizement or encroachment." 488 U. S.,[19] This is particularly true for 27A in light of Congress' historic primacy over statutes of limitations.[20] The statute contains several checks against the danger of congressional overreaching. The Court in Lampf undertook a legislative function. Essentially, it supplied a statute of limitations for 10b-5 actions. 265 The Court, however, failed to adopt the transition rules that ordinarily attend alterations shortening the time to sue. Congress, in 27A, has supplied those rules. The statute reflects the ability of two coequal branches to cooperate in providing for the impartial application of legal rules to particular disputes. The Court's mistrust of such cooperation ill serves the separation of powers.[21] IV The Court has drawn the wrong lesson from the Framers' disapproval of colonial legislatures' appellate review of judicial decisions. The Framers rejected that practice, not out of a mechanistic solicitude for "final judgments," but because they believed the impartial application of rules of law, rather 266 than the will of the majority, must govern the disposition of individual cases and controversies. Any legislative interference in the adjudication of the merits of a particular case carries the risk that political power will supplant evenhanded justice, whether the interference occurs before or after the entry of final judgment. Cf. United ; Hayburn's Case, Section 27A(b) neither commands the reinstatement of any particular case nor directs any result on the merits. Congress recently granted a special benefit to a single litigant in a pending civil rights case, but the Court saw no need even to grant certiorari to review that disturbing legislative favor.[22] In an ironic counterpoint, the Court today places a higher priority on protecting the Republic from the restoration to a large class of litigants of the opportunity to have Article III courts resolve the merits of their claims. "We must remember that the machinery of government would not work if it were not allowed a little play in its joints." Bain Peanut Co. of The three branches must cooperate in order to govern. We should regard favorably, rather than with suspicious hostility, legislation that enables the judiciary to overcome impediments to the performance of its mission of administering justice impartially, even when, as here, this Court has created the impediment.[23] Rigid rules often make good law, but judgments in areas such as the review of potential conflicts among the three coequal branches of the *267 Federal Government partake of art as well as science. That is why we have so often reiterated the insight of Justice Jackson: "The actual art of governing under our Constitution does not and cannot conform to judicial definitions of the power of any of its branches based on isolated clauses or even single Articles torn from context. While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity." Youngstown Sheet & Tube We have the authority to hold that Congress has usurped a judicial prerogative, but even if this case were doubtful I would heed Justice Iredell's admonition in that "the Court will never resort to that authority, but in a clear and urgent case." An appropriate regard for the interdependence of Congress and the judiciary amply supports the conclusion that 27A(b) reflects constructive legislative cooperation rather than a usurpation of judicial prerogatives. Accordingly, I respectfully dissent.	2,027
Justice Kennedy	majority	false	Ayers v. Belmontes	2006-11-13	null	https://www.courtlistener.com/opinion/145773/ayers-v-belmontes/	https://www.courtlistener.com/api/rest/v3/clusters/145773/	2,006	2006-002	1	5	4	Fernando Belmontes, the respondent here, was tried in 1982 in the Superior Court of the State of California in and for the County of San Joaquin. A jury returned a verdict of murder in the first degree and then determined he should be sentenced to death. The issue before us concerns a jury instruction in the sentencing phase. The trial court, following the statute then in effect, directed the jury, with other instructions and in a context to be discussed in more detail, to consider certain specific factors either as aggravating or mitigating. The trial court further instructed the jury to consider "[a]ny other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime." App. 184. Under the then-applicable statutory scheme this general or catchall factor was codified at Cal.Penal Code Ann. § 190.3(k) (West 1988); and it is referred to as "factor (k)." Belmontes contended, on direct review, in state collateral proceedings, and in the federal habeas proceedings giving rise to this case, that factor (k) and the trial court's other instructions barred the jury from considering his forward-looking mitigation evidencespecifically evidence that he likely would lead a constructive life if incarcerated instead of executed. The alleged limitation, in his view, prevented the jury from considering relevant mitigation evidence, in violation of his Eighth Amendment right to present all mitigating evidence in capital sentencing proceedings. See, e.g., Penry v. Johnson, 532 U.S. 782, 797, 121 S. Ct. 1910, 150 L. Ed. 2d 9 (2001); Skipper v. South Carolina, 476 U.S. 1, 4-5, 8, 106 S. Ct. 1669, 90 L. Ed. 2d 1 (1986); Eddings v. Oklahoma, 455 U.S. 104, 112, 102 S. Ct. 869, 71 L. Ed. 2d 1 (1982). The California Supreme Court, affirming the judgment and sentence, rejected this contention and other challenges. People v. Belmontes, 45 Cal. 3d 744, 799-802, 819, 248 Cal. Rptr. 126, 755 P.2d 310, 341-343, 355 (1988). In February 1994, after exhausting state remedies, respondent filed an amended federal habeas petition. The United States District Court for the Eastern District of California denied relief, App. to Pet. for Cert. 140a-141a, 145a, but a divided panel of the United States Court of Appeals for the Ninth Circuit reversed in relevant part, Belmontes v. Woodford, 350 F.3d 861, 908 (2003). Over the dissent of eight judges, the Court of Appeals denied rehearing en banc. Belmontes v. Woodford, 359 F.3d 1079 (2004). This Court granted certiorari, vacated the judgment, and remanded for further consideration in light of Brown v. Payton, 544 U.S. 133, 125 S. Ct. 1432, 161 L. Ed. 2d 334 (2005). Brown v. Belmontes, 544 U.S. 945, 125 S. Ct. 1697, 161 L. Ed. 2d 518 (2005). On remand, a divided panel again invalidated respondent's sentence; it distinguished Payton on the grounds that the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 110 Stat. 1214, though applicable in that case, does not apply here. Belmontes v. Brown, 414 F.3d 1094, 1101-1102 (2005). Over yet another dissent, the Court of Appeals again denied rehearing en banc. Belmontes v. Stokes, 427 F.3d 473 663 (2005). We granted certiorari, 547 U.S. 1110, 126 S. Ct. 1909, 164 L. Ed. 2d 662 (2006), and now reverse. I The evidence at trial showed that in March 1981, while burglarizing a home where two accomplices had attended a party, respondent unexpectedly encountered 19-year-old Steacy McConnell. Respondent killed her by striking her head 15 to 20 times with a steel dumbbell bar. Respondent had armed himself with the dumbbell bar before entering the victim's home. See Belmontes, supra, at 760-764, 248 Cal. Rptr. 126, 755 P.2d, at 315-317. In the sentencing phase of his trial Belmontes introduced mitigating evidence to show, inter alia, that he would make positive contributions to society in a structured prison environment. Respondent testified that, during a previous term under the California Youth Authority (CYA), he had behaved in a constructive way, working his way to the number two position on a fire crew in the CYA fire camp in which he was incarcerated. App. 44-45, 53. About that time he had embraced Christianity and entered into a Christian sponsorship program. He admitted that initially he participated in this program to spend time away from the camp. Later, after forming a good relationship with the married couple who were his Christian sponsors, he pursued a more religious life and was baptized. Although his religious commitment lapsed upon his release from the CYA, he testified that he would once again turn to religion whenever he could rededicate himself fully to it. Id., at 46-48, 53-55. Finally, he answered in the affirmative when asked if he was "prepared to contribute in anyway [he] can to society if [he was] put in prison for the rest of [his] life." Id., at 58. Respondent's former CYA chaplain testified at the sentencing hearing that respondent's conversion appeared genuine. The chaplain, describing respondent as "salvageable," expressed hope that respondent would contribute to prison ministries if given a life sentence. Id., at 79-83. An assistant chaplain similarly testified that, based on past experience, respondent likely would be adept at counseling other prisoners to avoid the mistakes he had made when they leave prison. Id., at 95-96. And respondent's Christian sponsors testified he was like a son to them and had been a positive influence on their own son. They also indicated he had participated in various activities at their church. Id., at 99-103, 110-114. After respondent presented his mitigating evidence, the parties made closing arguments discussing respondent's mitigating evidence and how the jury should consider it. Respondent was also allowed to provide his own statement. The trial judge included in his instructions the disputed factor (k) language, an instruction that has since been amended, see Cal. Jury Instr., Crim., No. 8.85(k) (2005). II In two earlier cases this Court considered a constitutional challenge to the factor (k) instruction. See Brown v. Payton, supra; Boyde v. California, 494 U.S. 370, 110 S. Ct. 1190, 108 L. Ed. 2d 316 (1990). In Boyde, the Court rejected a claim that factor (k), with its focus on circumstances "`extenuat[ing] the gravity of the crime,'" precluded consideration of mitigating evidence unrelated to the crime, such as evidence of the defendant's background and character. Id., at 377-378, 386, 110 S. Ct. 1190. The "proper inquiry," the Court explained, "is whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that 474 prevents the consideration of constitutionally relevant evidence." Id., at 380, 110 S. Ct. 1190. Since the defendant in Boyde "had an opportunity through factor (k) to argue that his background and character `extenuated' or `excused' the seriousness of the crime," the Court saw "no reason to believe that reasonable jurors would resist the view, `long held by society,' that in an appropriate case such evidence would counsel imposition of a sentence less than death." Id., at 382, 110 S. Ct. 1190 (citing Penry v. Lynaugh, 492 U.S. 302, 319, 109 S. Ct. 2934, 106 L. Ed. 2d 256 (1989)). During the sentencing phase in Boyde, moreover, the defense had presented extensive evidence regarding background and character, so construing factor (k) to preclude consideration of that evidence would have required the jurors not only to believe that "the court's instructions transformed all of this `favorable testimony into a virtual charade,'" 494 U.S., at 383, 110 S. Ct. 1190 (quoting California v. Brown, 479 U.S. 538, 542, 107 S. Ct. 837, 93 L. Ed. 2d 934 (1987)), but also to disregard another instruction requiring the jury to "`consider all of the evidence which has been received during any part of the trial of this case,'" 494 U.S., at 383, 110 S. Ct. 1190. In Payton, the Court again evaluated arguments that factor (k) barred consideration of constitutionally relevant evidencethis time, evidence relating to postcrime rehabilitation, rather than precrime background and character. See 544 U.S., at 135-136, 125 S. Ct. 1432. Payton did not come to this Court, as had Boyde, on direct review, but rather by federal habeas petition subject to AEDPA. Relief was available only if "the state court's adjudication of the 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.'" Payton, supra, at 141, 125 S. Ct. 1432 (quoting 28 U.S.C. § 2254(d)(1)). Although the prosecutor in Payton had argued to the juryincorrectlythat factor (k) did not permit consideration of postcrime rehabilitation evidence, this Court concluded that the California Supreme Court reasonably applied Boyde in finding no Eighth Amendment violation. 544 U.S., at 142, 146-147, 125 S. Ct. 1432. Accepting the prosecutor's reading would have required "the surprising conclusion that remorse could never serve to lessen or excuse a crime." Id., at 142, 125 S. Ct. 1432. Furthermore, countering any misimpression created by the prosecution's argument, the defense in Payton had presented extensive evidence and argument regarding a postcrime religious conversion and other good behavior. The trial court had instructed the jury to consider all evidence admitted "`during any part of the trial in this case, except as you may be hereafter instructed,'" and the prosecution itself "devoted substantial attention to discounting [the postcrime evidence's] importance as compared to the aggravating factors." Id., at 145-146, 125 S. Ct. 1432. Hence, the state court in Payton could reasonably have concluded that, as in Boyde, there was no reasonable likelihood that the jury understood the instruction to preclude consideration of the postcrime mitigation evidence it had heard. 544 U.S., at 147, 125 S. Ct. 1432. III As the Court directed in Boyde, we inquire "whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence." 494 U.S., at 380, 110 S. Ct. 1190. Here, as in Payton, respondent argues that factor (k) prevented the 475 jury from giving effect to his forward-looking evidence. And, as in Payton, respondent's case comes to this Court in federal habeas proceedings collaterally attacking the state court's ruling. Unlike in Payton, however, the federal petition in this case was filed before AEDPA's effective date. AEDPA and its deferential standards of review are thus inapplicable. See Woodford v. Garceau, 538 U.S. 202, 210, 123 S. Ct. 1398, 155 L. Ed. 2d 363 (2003). The Court of Appeals distinguished Payton on this ground. See 414 F.3d, at 1101-1102. It was mistaken, however, to find a "reasonable probability" that the jury did not consider respondent's future potential. Id., at 1138. A The Court of Appeals erred by adopting a narrow and, we conclude, an unrealistic interpretation of factor (k). "Most naturally read," the Court of Appeals reasoned, "this instruction allows the jury to consider evidence that bears upon the commission of the crime by the defendant and excuses or mitigates his culpability for the offense." Id., at 1134. As both Boyde and Payton explain, however, this interpretation is too confined. "The instruction did not ... limit the jury's consideration to `any other circumstance of the crime which extenuates the gravity of the crime.' The jury was directed to consider any other circumstance that might excuse the crime." Boyde, supra, at 382, 110 S. Ct. 1190; see also Payton, supra, at 141-142, 125 S. Ct. 1432. And just as precrime background and character (Boyde) and postcrime rehabilitation (Payton) may "extenuat[e] the gravity of the crime," so may some likelihood of future good conduct count as a circumstance tending to make a defendant less deserving of the death penalty. Cf. Skipper, 476 U.S., at 4-5, 106 S. Ct. 1669 (explaining that while inferences regarding future conduct do not "relate specifically to [a defendant's] culpability for the crime he committed," those inferences are "`mitigating' in the sense that they might serve `as a basis for a sentence less than death'" (quoting Lockett v. Ohio, 438 U.S. 586, 604, 98 S. Ct. 2954, 57 L. Ed. 2d 973 (1978) (plurality opinion))). The Court of Appeals failed to heed the full import of Payton's holding, a holding that has significance even where AEDPA is inapplicable. Payton indicated that reading factor (k) to preclude consideration of postcrime evidence would require "the surprising conclusion that remorse could never serve to lessen or excuse a crime." 544 U.S., at 142, 125 S. Ct. 1432. So, too, would it be counterintuitive if a defendant's capacity to redeem himself through good works could not extenuate his offense and render him less deserving of a death sentence. In any event, since respondent sought to extrapolate future behavior from precrime conduct, his mitigation theory was more analogous to the good-character evidence examined in Boyde and held to fall within factor (k)'s purview. See 494 U.S., at 381, 110 S. Ct. 1190 (describing the evidence at issue as including evidence of the defendant's "strength of character"). Both types of evidence suggest the crime stemmed more from adverse circumstances than from an irredeemable character. See 414 F.3d, at 1141-1142 (O'Scannlain, J., concurring in part and dissenting in part); cf. Johnson v. Texas, 509 U.S. 350, 369, 113 S. Ct. 2658, 125 L. Ed. 2d 290 (1993) (noting that the "forward-looking" future-dangerousness inquiry "is not independent of an assessment of personal culpability"). B Our interpretation of factor (k) is the one most consistent with the evidence presented 476 to the jury, the parties' closing arguments, and the other instructions provided by the trial court. Each of these will be discussed in turn. As the Court of Appeals recognized, future-conduct evidence was central to the mitigation case presented by the defense. See 414 F.3d, at 1134. Indeed, although the defense also adduced evidence of a troubled upbringing, respondent testified that he could not use his difficult life "as a crutch to say I am in a situation right now, I'm here now because of that." App. 40. Given this assertion, and considering the extensive forward-looking evidence presented at sentencingevidence including testimony from two prison chaplains, respondent's church sponsors, and respondent himselfthe jurors could have disregarded respondent's future potential only if they drew the unlikely inference that "the court's instructions transformed all of this `favorable testimony into a virtual charade,'" Boyde, supra, at 383, 110 S. Ct. 1190 (quoting Brown, 479 U.S., at 542, 107 S. Ct. 837). It is improbable the jurors believed that the parties were engaging in an exercise in futility when respondent presented (and both counsel later discussed) his mitigating evidence in open court. Arguments by the prosecution and the defense assumed the evidence was relevant. The prosecutor initially discussed the various factors that were to guide the jury. He referred to factor (k) as "a catchall." App. 153. He then discussed respondent's religious experience in some detail. With respect to whether this experience fit within factor (k), he indicated: "I'm not sure it really fits in there. I'm not sure it really fits in any of them. But I think it appears to be a proper subject of consideration." Id., at 154. These seemingly contradictory statements are explained by the prosecutor's following comments. The prosecutor suggested (quite understandably on the record) that respondent's religious evidence was weak. He stated: "You know, first of all, it's no secret that the evidence upon which the defendant's religious experience rests is somewhat shaky." Ibid. He also opined that the experience had to be taken "with a grain of salt." Id., at 155. The jury would have realized that, when the prosecutor suggested respondent's religious experience did not fit within factor (k), he was discussing the persuasiveness of the evidence, not the jury's ability to consider it. After all, he thought religion was "a proper subject of consideration." Id., at 154. The prosecutor then discussed how the jury should weigh respondent's "religious awakening": "I suppose you can say it would be appropriate becausein this fashion: The defendant may be of value to the community later. You recall the people talking about how he would have the opportunity to work with other prisoners in prison. And I think that value to the community is something that you have to weigh in. There's something to that. "On the other hand, the fact that someone has religion as opposed to someone doesn't should be no grounds for either giving or withholding life. I mean let's turn it around and look at the other side of the coin. Suppose someone said he didn't belong to a church and didn't talk to a minister. Would that man deserve to die merely because of that? So if he says he has religion, does he deserve the other penalty, life? I don't think that that should be an influencing factor at all in that respect. I don't think the law contemplates that and I don't think it's right." Id., at 155. 477 These remarks confirmed to the jury that it should analyze respondent's future potential, his future "value to the community." Ibid. This is what respondent himself wanted it to do. And while the prosecutor commented that the law did not contemplate jury consideration of respondent's religious conversion, respondent did not argue that the jury should consider the mere fact that he had discovered religion. Rather, as manifested by his arguments on appeal, respondent wanted to use this religious evidence to demonstrate his future "value to the community," not to illustrate his past religious awakening. Nothing the prosecutor said would have convinced the jury that it was forbidden from even considering respondent's religious conversion, though surely the jury could discount it; and nothing the prosecutor said would have led the jury to think it could not consider respondent's future potential, especially since he indicated that this is exactly what the jury had "to weigh" in its deliberation. Ibid. After the prosecutor concluded his arguments, the trial judge allowed respondent to speak on his own behalf. Respondent, while not showing any remorse, suggested that life imprisonment offered "an opportunity to achieve goals and try to better yourself." Id., at 163. He also stated: "I myself would really like to have my life and try to improve myself." Id., at 164. Respondent's personal pleas were consistent with a trial in which the jury would assess his future prospects in determining what sentence to impose. Defense counsel's closing arguments confirm this analysis. To be sure, commenting on the mitigating evidence, he initially indicated: "I'm not going to insult you by telling you I think [the mitigating evidence] excuses in any way what happened here. That is not the reason I asked these people to come in." Id., at 166. Read in context defense counsel's remarks did not imply the jury should ignore the mitigating evidence. Rather, conforming to the dichotomy within factor (k) itself, his remarks merely distinguished between a legal excuse and an extenuating circumstance. Cf. Cal.Penal Code Ann. § 190.3(k) ("[a]ny other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime"). That defense counsel did, in fact, want the jury to take into account respondent's future potential became manifest near the end of his argument. He suggested that the "people who came in here [and] told you about [respondent]" provided the jury with "a game plan" for what respondent could do with his life. App. 170. He continued: "We're just suggesting the tip of the iceberg because who knows in 20, 30, 40, 50 years what sorts of things he can do, as he fits into the system, as he learns to set his goals, to contribute something in whatever way he can." Ibid. This would have left the jury believing it could and should contemplate respondent's potential. Other instructions from the trial court make it quite implausible that the jury would deem itself foreclosed from considering respondent's full case in mitigation. Before enumerating specific factors for considerationfactors including the circumstances of the crime, the defendant's age, and "[t]he presence or absence of any prior felony conviction," id., at 184, as well as the factor (k) catchallthe judge told the jury: "In determining which penalty is to be imposed on the defendant you shall consider all of the evidence which has been received during any part of the trial of this case, except as you may be hereafter instructed." Id., at 183. After listing the factors, he indicated: "After having heard all of the evidence and after having heard and considered 478 the arguments of counsel, you shall consider, take into account and be guided by the applicable factors of aggravating and mitigating circumstances upon which you have been instructed. "If you conclude that the aggravating circumstances outweigh the mitigating circumstances, you shall impose a sentence of death. However, if you determine that the mitigating circumstances outweigh the aggravating circumstances, you shall impose a sentence of confinement in the state prison for life without the possibility of parole." Id., at 185. The judge then gave a supplemental instruction regarding aggravating and mitigating factors: "I have previously read to you the list of aggravating circumstances which the law permits you to consider if you find that any of them is established by the evidence. These are the only aggravating circumstances that you may consider. You are not allowed to take account of any other facts or circumstances as the basis for deciding that the death penalty would be an appropriate punishment in this case. "However, the mitigating circumstances which I have read for your consideration are given to you merely as examples of some of the factors that you may take into account as reasons for deciding not to impose a death penalty or a death sentence upon Mr. Belmontes. You should pay careful attention to each of these factors. Any one of them standing alone may support a decision that death is not the appropriate punishment in this case." Id., at 185-186. Given the evidence and arguments presented to the jury, these instructions eliminate any reasonable likelihood that a juror would consider respondent's future prospects to be beyond the bounds of proper consideration. The judge told the jury to consider "all of the evidence," and "all of the evidence" included respondent's forward-looking mitigation case. While the judge did end his broad command to appraise all the evidence with the qualifier "except as you may be hereafter instructed," id., at 183, he did not later instruct the jury that it should disregard respondent's future potential in prison. The jury could not fairly read the limitation in the instruction to apply to respondent's central mitigation theory. By contrast, in response to a juror's question, the trial judge specifically instructed the jury not to consider whether respondent could receive psychiatric treatment while in prison. The sharp contrast between the court's instruction on aggravation (that only enumerated factors could be considered) and its instruction on mitigation (that listed factors were "merely ... examples," id., at 186) made it clear that the jury was to take a broad view of mitigating evidence. Coming back to back, the instructions conveyed the message that the jury should weigh the finite aggravators against the potentially infinite mitigators. That the trial judge told the jury to "pay careful attention" to the listed mitigating factors, ibid., moreover, did not compel the jury to give them sole consideration. For this to be the case, the jury would have had to fail to take the judge at his word. The judge did not advise the jury to pay exclusive attention to the listed mitigating circumstances, and he had told the jury that these circumstances were simply examples. It is implausible that the jury supposed that past deeds pointing to a constructive future could not "extenuat[e] the gravity of the crime," as required by factor (k), much less that such evidence could not be considered at all. Boyde concludes that in jury deliberations "commonsense understanding 479 of the instructions in the light of all that has taken place at the trial [is] likely to prevail over technical hair-splitting." 494 U.S., at 381, 110 S. Ct. 1190. Here, far from encouraging the jury to ignore the defense's central evidence, the instructions supported giving it due weight. In concluding otherwise, the Court of Appeals cited queries from some of the jurors as evidence of confusion. Although the jury's initial question is not in the record, it appeared to ask the judge about the consequences of failing to reach a unanimous verdict. Cf. 414 F.3d, at 1135. In response, the judge reread portions of the instructions and stated that "all 12 jurors must agree, if you can." App. 190. Before the judge sent the jury back for further deliberation, the following exchange took place: "JUROR HERN: The statement about the aggravation and mitigation of the circumstances, now, that was the listing? "THE COURT: That was the listing, yes, ma'am. "JUROR HERN: Of those certain factors we were to decide one or the other and then balance the sheet? "THE COURT: That is right. It is a balancing process. Mr. Meyer? "JUROR MEYER: A specific question, would this be an either/or situation, not a one, if you cannot the other? "THE COURT: No. It is not that. "JUROR MEYER: It is an either/or situation? "THE COURT: Exactly. If you can make that either/or decision. If you cannot, then I will discharge you. "JUROR HAILSTONE: Could I ask a question? I don't know if it is permissible. Is it possible that he could have psychiatric treatment during this time? "THE COURT: That is something you cannot consider in making your decision." Id., at 191. The Court of Appeals decided Juror Hern's questions indicated she thought (incorrectly) that only listed mitigating factors were on the tablean error, in the Court of Appeals' view, that should have prompted a clarifying instruction confirming that all the mitigating evidence was relevant. 414 F.3d, at 1136. The Court of Appeals further supposed the response to Juror Hailstone's question compounded the problem, since psychiatric treatment presumably would be necessary only in aid of future rehabilitation. Id., at 1137. The Court of Appeals' analysis is flawed. To begin with, attributing to Juror Hern a dilemma over the scope of mitigation is only one way to interpret her questions, and, as the California Supreme Court observed on direct review, it is not necessarily the correct one, see Belmontes, 45 Cal.3d, at 804, 248 Cal. Rptr. 126, 755 P.2d, at 344. It is at least as likely that the juror was simply asking for clarification about California's overall balancing process, which requires juries to consider and balance enumerated factors (such as age and criminal history) that are labeled neither as mitigating nor as aggravating. As Juror Hern surmised (but sought to clarify), the jury itself must determine the side of the balance on which each listed factor falls. See Cal.Penal Code Ann. § 190.3 (providing that, "[i]n determining the penalty, the trier of fact shall take into account" any relevant listed factors); see generally Tuilaepa v. California, 512 U.S. 967, 978-979, 114 S. Ct. 2630, 129 L. Ed. 2d 750 (1994) (noting that the § 190.3 sentencing factors "do not instruct the sentencer how to weigh any of the facts it finds in deciding upon the ultimate sentence"). 480 Even assuming the Court of Appeals correctly interpreted Juror Hern's questions, the court's conclusion that this juror likely ignored forward-looking evidence presupposes what it purports to establish, namely, that forward-looking evidence could not fall within factor (k). As discussed earlier, nothing barred the jury from viewing respondent's future prospects as "extenuat[ing] the gravity of the crime," so nothing barred it from considering such evidence under the rubric of the "listing." As for Juror Hailstone's psychiatric-care question, this inquiry shows that, if anything, the jurors were considering respondent's potential. The trial court's response, far from implying a broad prohibition on forward-looking inferences, was readily explicable by the absence of any evidence in the record regarding psychiatric care. In view of our analysis and disposition in this case it is unnecessary to address an argument for reversing the Court of Appeals based on the Court's holding in Johnson v. Texas, 509 U.S. 350, 113 S. Ct. 2658, 125 L. Ed. 2d 290 (1993), a subject raised by Judge O'Scannlain in his separate opinion in the Court of Appeals. See 414 F.3d, at 1141-1142 (opinion concurring in part and dissenting in part). IV In this case, as in Boyde and as in Payton, the jury heard mitigating evidence, the trial court directed the jury to consider all the evidence presented, and the parties addressed the mitigating evidence in their closing arguments. This Court's cases establish, as a general rule, that a jury in such circumstances is not reasonably likely to believe itself barred from considering the defense's evidence as a factor "extenuat[ing] the gravity of the crime." The factor (k) instruction is consistent with the constitutional right to present mitigating evidence in capital sentencing proceedings. 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.	Fernando the respondent here, was tried in in the Superior Court of the State of California in and for the County of San Joaquin. A jury returned a verdict of murder in the first degree and then determined he should be sentenced to death. The issue before us concerns a jury instruction in the sentencing phase. The trial court, following the statute then in effect, directed the jury, with other instructions and in a context to be discussed in more detail, to consider certain specific factors either as aggravating or mitigating. The trial court further instructed the jury to consider "[a]ny other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime." App. 184. Under the then-applicable statutory scheme this general or catchall factor was codified at Cal.Penal Code Ann. 190.3(k) ; and it is referred to as "factor (k)." contended, on direct review, in state collateral proceedings, and in the federal habeas proceedings giving rise to this case, that factor (k) and the trial court's other instructions barred the jury from considering his forward-looking mitigation evidencespecifically evidence that he likely would lead a constructive life if incarcerated instead of executed. The alleged limitation, in his view, prevented the jury from considering relevant mitigation evidence, in violation of his Eighth Amendment right to present all mitigating evidence in capital sentencing proceedings. See, e.g., ; ; The California Supreme Court, affirming the judgment and sentence, rejected this contention and other challenges. In February after exhausting state remedies, respondent filed an amended federal habeas petition. The United States District Court for the Eastern District of California denied relief, App. to Pet. for Cert. 140a-141a, 145a, but a divided panel of the United States Court of Appeals for the Ninth Circuit reversed in relevant part, Over the dissent of eight judges, the Court of Appeals denied rehearing en banc. This Court granted certiorari, vacated the judgment, and remanded for further consideration in light of On remand, a divided panel again invalidated respondent's sentence; it distinguished on the grounds that the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), though applicable in that case, does not apply here. Over yet another dissent, the Court of Appeals again denied rehearing en banc. v. Stokes, 427 F.3d 473 663 We granted certiorari, and now reverse. I The evidence at trial showed that in March 1981, while burglarizing a home where two accomplices had attended a party, respondent unexpectedly encountered 19-year-old Steacy McConnell. Respondent killed her by striking her head 15 to 20 times with a steel dumbbell bar. Respondent had armed himself with the dumbbell bar before entering the victim's home. See -317. In the sentencing phase of his trial introduced mitigating evidence to show, inter alia, that he would make positive contributions to society in a structured prison environment. Respondent testified that, during a previous term under the California Youth Authority (CYA), he had behaved in a constructive way, working his way to the number two position on a fire crew in the CYA fire camp in which he was incarcerated. App. 44-45, 53. About that time he had embraced Christianity and entered into a Christian sponsorship program. He admitted that initially he participated in this program to spend time away from the camp. Later, after forming a good relationship with the married couple who were his Christian sponsors, he pursued a more religious life and was baptized. Although his religious commitment lapsed upon his release from the CYA, he testified that he would once again turn to religion whenever he could rededicate himself fully to it. Finally, he answered in the affirmative when asked if he was "prepared to contribute in anyway [he] can to society if [he was] put in prison for the rest of [his] life." Respondent's former CYA chaplain testified at the sentencing hearing that respondent's conversion appeared genuine. The chaplain, describing respondent as "salvageable," expressed hope that respondent would contribute to prison ministries if given a life sentence. An assistant chaplain similarly testified that, based on past experience, respondent likely would be adept at counseling other prisoners to avoid the mistakes he had made when they leave prison. And respondent's Christian sponsors testified he was like a son to them and had been a positive influence on their own son. They also indicated he had participated in various activities at their church. After respondent presented his mitigating evidence, the parties made closing arguments discussing respondent's mitigating evidence and how the jury should consider it. Respondent was also allowed to provide his own statement. The trial judge included in his instructions the disputed factor (k) language, an instruction that has since been amended, see Cal. Jury Instr., Crim., No. 8.85(k) II In two earlier cases this Court considered a constitutional challenge to the factor (k) instruction. See In the Court rejected a claim that factor (k), with its focus on circumstances "`extenuat[ing] the gravity of the crime,'" precluded consideration of mitigating evidence unrelated to the crime, such as evidence of the defendant's background and character. The "proper inquiry," the Court explained, "is whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that 474 prevents the consideration of constitutionally relevant evidence." Since the defendant in "had an opportunity through factor (k) to argue that his background and character `extenuated' or `excused' the seriousness of the crime," the Court saw "no reason to believe that reasonable jurors would resist the view, `long held by society,' that in an appropriate case such evidence would counsel imposition of a sentence less than death." ). During the sentencing phase in moreover, the defense had presented extensive evidence regarding background and character, so construing factor (k) to preclude consideration of that evidence would have required the jurors not only to believe that "the court's instructions transformed all of this `favorable testimony into a virtual charade,'" ), but also to disregard another instruction requiring the jury to "`consider all of the evidence which has been received during any part of the trial of this case,'" In the Court again evaluated arguments that factor (k) barred consideration of constitutionally relevant evidencethis time, evidence relating to postcrime rehabilitation, rather than precrime background and character. See -136, did not come to this Court, as had on direct review, but rather by federal habeas petition subject to AEDPA. Relief was available only if "the state court's adjudication of the 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.'" (quoting 28 U.S.C. 2254(d)(1)). Although the prosecutor in had argued to the juryincorrectlythat factor (k) did not permit consideration of postcrime rehabilitation evidence, this Court concluded that the California Supreme Court reasonably applied in finding no Eighth Amendment 146-147, Accepting the prosecutor's reading would have required "the surprising conclusion that remorse could never serve to lessen or excuse a crime." Furthermore, countering any misimpression created by the prosecution's argument, the defense in had presented extensive evidence and argument regarding a postcrime religious conversion and other good behavior. The trial court had instructed the jury to consider all evidence admitted "`during any part of the trial in this case, except as you may be hereafter instructed,'" and the prosecution itself "devoted substantial attention to discounting [the postcrime evidence's] importance as compared to the aggravating factors." Hence, the state court in could reasonably have concluded that, as in there was no reasonable likelihood that the jury understood the instruction to preclude consideration of the postcrime mitigation evidence it had III As the Court directed in we inquire "whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence." 494 U.S., Here, as in respondent argues that factor (k) prevented the 475 jury from giving effect to his forward-looking evidence. And, as in respondent's case comes to this Court in federal habeas proceedings collaterally attacking the state court's ruling. Unlike in however, the federal petition in this case was filed before AEDPA's effective date. AEDPA and its deferential standards of review are thus inapplicable. See The Court of Appeals distinguished on this ground. See 414 F.3d, at It was mistaken, however, to find a "reasonable probability" that the jury did not consider respondent's future potential. A The Court of Appeals erred by adopting a narrow and, we conclude, an unrealistic interpretation of factor (k). "Most naturally read," the Court of Appeals reasoned, "this instruction allows the jury to consider evidence that bears upon the commission of the crime by the defendant and excuses or mitigates his culpability for the offense." As both and explain, however, this interpretation is too confined. "The instruction did not limit the jury's consideration to `any other circumstance of the crime which extenuates the gravity of the crime.' The jury was directed to consider any other circumstance that might excuse the crime." ; see also -142, And just as precrime background and character () and postcrime rehabilitation () may "extenuat[e] the gravity of the crime," so may some likelihood of future good conduct count as a circumstance tending to make a defendant less deserving of the death penalty. -5, )). The Court of Appeals failed to heed the full import of 's holding, a holding that has significance even where AEDPA is inapplicable. indicated that reading factor (k) to preclude consideration of postcrime evidence would require "the surprising conclusion that remorse could never serve to lessen or excuse a crime." So, too, would it be counterintuitive if a defendant's capacity to redeem himself through good works could not extenuate his offense and render him less deserving of a death sentence. In any event, since respondent sought to extrapolate future behavior from precrime conduct, his mitigation theory was more analogous to the good-character evidence examined in and held to fall within factor (k)'s purview. See (describing the evidence at issue as including evidence of the defendant's "strength of character"). Both types of evidence suggest the crime stemmed more from adverse circumstances than from an irredeemable character. See -1142 ; cf. B Our interpretation of factor (k) is the one most consistent with the evidence presented 476 to the jury, the parties' closing arguments, and the other instructions provided by the trial court. Each of these will be discussed in turn. As the Court of Appeals recognized, future-conduct evidence was central to the mitigation case presented by the defense. See 414 F.3d, Indeed, although the defense also adduced evidence of a troubled upbringing, respondent testified that he could not use his difficult life "as a crutch to say I am in a situation right now, I'm here now because of that." App. 40. Given this assertion, and considering the extensive forward-looking evidence presented at sentencingevidence including testimony from two prison chaplains, respondent's church sponsors, and respondent himselfthe jurors could have disregarded respondent's future potential only if they drew the unlikely inference that "the court's instructions transformed all of this `favorable testimony into a virtual charade,'" (quoting 479 U.S., at ). It is improbable the jurors believed that the parties were engaging in an exercise in futility when respondent presented (and both counsel later discussed) his mitigating evidence in open court. Arguments by the prosecution and the defense assumed the evidence was The prosecutor initially discussed the various factors that were to guide the jury. He referred to factor (k) as "a catchall." App. 153. He then discussed respondent's religious experience in some detail. With respect to whether this experience fit within factor (k), he indicated: "I'm not sure it really fits in there. I'm not sure it really fits in any of them. But I think it appears to be a proper subject of consideration." These seemingly contradictory statements are explained by the prosecutor's following comments. The prosecutor suggested (quite understandably on the record) that respondent's religious evidence was weak. He stated: "You know, first of all, it's no secret that the evidence upon which the defendant's religious experience rests is somewhat shaky." He also opined that the experience had to be taken "with a grain of salt." The jury would have realized that, when the prosecutor suggested respondent's religious experience did not fit within factor (k), he was discussing the persuasiveness of the evidence, not the jury's ability to consider it. After all, he thought religion was "a proper subject of consideration." The prosecutor then discussed how the jury should weigh respondent's "religious awakening": "I suppose you can say it would be appropriate becausein this fashion: The defendant may be of value to the community later. You recall the people talking about how he would have the opportunity to work with other prisoners in prison. And I think that value to the community is something that you have to weigh in. There's something to that. "On the other hand, the fact that someone has religion as opposed to someone doesn't should be no grounds for either giving or withholding life. I mean let's turn it around and look at the other side of the coin. Suppose someone said he didn't belong to a church and didn't talk to a minister. Would that man deserve to die merely because of that? So if he says he has religion, does he deserve the other penalty, life? I don't think that that should be an influencing factor at all in that respect. I don't think the law contemplates that and I don't think it's right." 477 These remarks confirmed to the jury that it should analyze respondent's future potential, his future "value to the community." This is what respondent himself wanted it to do. And while the prosecutor commented that the law did not contemplate jury consideration of respondent's religious conversion, respondent did not argue that the jury should consider the mere fact that he had discovered religion. Rather, as manifested by his arguments on appeal, respondent wanted to use this religious evidence to demonstrate his future "value to the community," not to illustrate his past religious awakening. Nothing the prosecutor said would have convinced the jury that it was forbidden from even considering respondent's religious conversion, though surely the jury could discount it; and nothing the prosecutor said would have led the jury to think it could not consider respondent's future potential, especially since he indicated that this is exactly what the jury had "to weigh" in its deliberation. After the prosecutor concluded his arguments, the trial judge allowed respondent to speak on his own behalf. Respondent, while not showing any remorse, suggested that life imprisonment offered "an opportunity to achieve goals and try to better yourself." He also stated: "I myself would really like to have my life and try to improve myself." Respondent's personal pleas were consistent with a trial in which the jury would assess his future prospects in determining what sentence to impose. Defense counsel's closing arguments confirm this analysis. To be sure, commenting on the mitigating evidence, he initially indicated: "I'm not going to insult you by telling you I think [the mitigating evidence] excuses in any way what happened here. That is not the reason I asked these people to come in." Read in context defense counsel's remarks did not imply the jury should ignore the mitigating evidence. Rather, conforming to the dichotomy within factor (k) itself, his remarks merely distinguished between a legal excuse and an extenuating circumstance. Cal.Penal Code Ann. 190.3(k) ("[a]ny other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime"). That defense counsel did, in fact, want the jury to take into account respondent's future potential became manifest near the end of his argument. He suggested that the "people who came in here [and] told you about [respondent]" provided the jury with "a game plan" for what respondent could do with his life. App. 170. He continued: "We're just suggesting the tip of the iceberg because who knows in 20, 30, 40, 50 years what sorts of things he can do, as he fits into the system, as he learns to set his goals, to contribute something in whatever way he can." This would have left the jury believing it could and should contemplate respondent's potential. Other instructions from the trial court make it quite implausible that the jury would deem itself foreclosed from considering respondent's full case in mitigation. Before enumerating specific factors for considerationfactors including the circumstances of the crime, the defendant's age, and "[t]he presence or absence of any prior felony conviction," as well as the factor (k) catchallthe judge told the jury: "In determining which penalty is to be imposed on the defendant you shall consider all of the evidence which has been received during any part of the trial of this case, except as you may be hereafter instructed." After listing the factors, he indicated: "After having heard all of the evidence and after having heard and considered 478 the arguments of counsel, you shall consider, take into account and be guided by the applicable factors of aggravating and mitigating circumstances upon which you have been instructed. "If you conclude that the aggravating circumstances outweigh the mitigating circumstances, you shall impose a sentence of death. However, if you determine that the mitigating circumstances outweigh the aggravating circumstances, you shall impose a sentence of confinement in the state prison for life without the possibility of parole." The judge then gave a supplemental instruction regarding aggravating and mitigating factors: "I have previously read to you the list of aggravating circumstances which the law permits you to consider if you find that any of them is established by the evidence. These are the only aggravating circumstances that you may consider. You are not allowed to take account of any other facts or circumstances as the basis for deciding that the death penalty would be an appropriate punishment in this case. "However, the mitigating circumstances which I have read for your consideration are given to you merely as examples of some of the factors that you may take into account as reasons for deciding not to impose a death penalty or a death sentence upon Mr. You should pay careful attention to each of these factors. Any one of them standing alone may support a decision that death is not the appropriate punishment in this case." -186. Given the evidence and arguments presented to the jury, these instructions eliminate any reasonable likelihood that a juror would consider respondent's future prospects to be beyond the bounds of proper consideration. The judge told the jury to consider "all of the evidence," and "all of the evidence" included respondent's forward-looking mitigation case. While the judge did end his broad command to appraise all the evidence with the qualifier "except as you may be hereafter instructed," he did not later instruct the jury that it should disregard respondent's future potential in prison. The jury could not fairly read the limitation in the instruction to apply to respondent's central mitigation theory. By contrast, in response to a juror's question, the trial judge specifically instructed the jury not to consider whether respondent could receive psychiatric treatment while in prison. The sharp contrast between the court's instruction on aggravation (that only enumerated factors could be considered) and its instruction on mitigation (that listed factors were "merely examples," ) made it clear that the jury was to take a broad view of mitigating evidence. Coming back to back, the instructions conveyed the message that the jury should weigh the finite aggravators against the potentially infinite mitigators. That the trial judge told the jury to "pay careful attention" to the listed mitigating factors, ib moreover, did not compel the jury to give them sole consideration. For this to be the case, the jury would have had to fail to take the judge at his word. The judge did not advise the jury to pay exclusive attention to the listed mitigating circumstances, and he had told the jury that these circumstances were simply examples. It is implausible that the jury supposed that past deeds pointing to a constructive future could not "extenuat[e] the gravity of the crime," as required by factor (k), much less that such evidence could not be considered at all. concludes that in jury deliberations "commonsense understanding 479 of the instructions in the light of all that has taken place at the trial [is] likely to prevail over technical hair-splitting." Here, far from encouraging the jury to ignore the defense's central evidence, the instructions supported giving it due weight. In concluding otherwise, the Court of Appeals cited queries from some of the jurors as evidence of confusion. Although the jury's initial question is not in the record, it appeared to ask the judge about the consequences of failing to reach a unanimous verdict. In response, the judge reread portions of the instructions and stated that "all 12 jurors must agree, if you can." App. 190. Before the judge sent the jury back for further deliberation, the following exchange took place: "JUROR HERN: The statement about the aggravation and mitigation of the circumstances, now, that was the listing? "THE COURT: That was the listing, yes, ma'am. "JUROR HERN: Of those certain factors we were to decide one or the other and then balance the sheet? "THE COURT: That is right. It is a balancing process. Mr. Meyer? "JUROR MEYER: A specific question, would this be an either/or situation, not a one, if you cannot the other? "THE COURT: No. It is not that. "JUROR MEYER: It is an either/or situation? "THE COURT: Exactly. If you can make that either/or decision. If you cannot, then I will discharge you. "JUROR HAILSTONE: Could I ask a question? I don't know if it is permissible. Is it possible that he could have psychiatric treatment during this time? "THE COURT: That is something you cannot consider in making your decision." The Court of Appeals decided Juror Hern's questions indicated she thought (incorrectly) that only listed mitigating factors were on the tablean error, in the Court of Appeals' view, that should have prompted a clarifying instruction confirming that all the mitigating evidence was The Court of Appeals further supposed the response to Juror Hailstone's question compounded the problem, since psychiatric treatment presumably would be necessary only in aid of future rehabilitation. The Court of Appeals' analysis is flawed. To begin with, attributing to Juror Hern a dilemma over the scope of mitigation is only one way to interpret her questions, and, as the California Supreme Court observed on direct review, it is not necessarily the correct one, see It is at least as likely that the juror was simply asking for clarification about California's overall balancing process, which requires juries to consider and balance enumerated factors (such as age and criminal history) that are labeled neither as mitigating nor as aggravating. As Juror Hern surmised (but sought to clarify), the jury itself must determine the side of the balance on which each listed factor falls. See Cal.Penal Code Ann. 190.3 (providing that, "[i]n determining the penalty, the trier of fact shall take into account" any relevant listed factors); see generally (noting that the 190.3 sentencing factors "do not instruct the sentencer how to weigh any of the facts it finds in deciding upon the ultimate sentence"). 480 Even assuming the Court of Appeals correctly interpreted Juror Hern's questions, the court's conclusion that this juror likely ignored forward-looking evidence presupposes what it purports to establish, namely, that forward-looking evidence could not fall within factor (k). As discussed earlier, nothing barred the jury from viewing respondent's future prospects as "extenuat[ing] the gravity of the crime," so nothing barred it from considering such evidence under the rubric of the "listing." As for Juror Hailstone's psychiatric-care question, this inquiry shows that, if anything, the jurors were considering respondent's potential. The trial court's response, far from implying a broad prohibition on forward-looking inferences, was readily explicable by the absence of any evidence in the record regarding psychiatric care. In view of our analysis and disposition in this case it is unnecessary to address an argument for reversing the Court of Appeals based on the Court's holding in a subject raised by Judge O'Scannlain in his separate opinion in the Court of Appeals. See -1142 IV In this case, as in and as in the jury heard mitigating evidence, the trial court directed the jury to consider all the evidence presented, and the parties addressed the mitigating evidence in their closing arguments. This Court's cases establish, as a general rule, that a jury in such circumstances is not reasonably likely to believe itself barred from considering the defense's evidence as a factor "extenuat[ing] the gravity of the crime." The factor (k) instruction is consistent with the constitutional right to present mitigating evidence in capital sentencing proceedings. 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.	2,028
Justice Scalia	concurring	false	Ayers v. Belmontes	2006-11-13	null	https://www.courtlistener.com/opinion/145773/ayers-v-belmontes/	https://www.courtlistener.com/api/rest/v3/clusters/145773/	2,006	2006-002	1	5	4	I adhere to my view that limiting a jury's discretion to consider all mitigating evidence does not violate the Eighth Amendment. See Walton v. Arizona, 497 U.S. 639, 673, 110 S. Ct. 3047, 111 L. Ed. 2d 511 (1990) (SCALIA, J., concurring in part and concurring in judgment). Even accepting the Court's jurisprudence to the contrary, however, this is arguably an easy case, given our reiteration in Johnson v. Texas, 509 U.S. 350, 372, 113 S. Ct. 2658, 125 L. Ed. 2d 290 (1993), that a jury need only "be able to consider in some manner all of a defendant's relevant mitigating evidence," and need not "be able to give effect to mitigating evidence in every conceivable manner in which the evidence might be relevant." But since petitioner has not relied on Johnson, as Judge O'Scannlain did below, see Belmontes v. Brown, 414 F.3d 1094, 1141-1142 (C.A.9 2005) (opinion concurring in part and dissenting in part), I am content to join in full the Court's opinion, which correctly applies Boyde v. California, 494 U.S. 370, 110 S. Ct. 1190, 108 L. Ed. 2d 316 (1990).	I adhere to my view that limiting a jury's discretion to consider all mitigating evidence does not violate the Eighth Amendment. See Even accepting the Court's jurisprudence to the contrary, however, this is arguably an easy case, given our reiteration in that a jury need only "be able to consider in some manner all of a defendant's relevant mitigating evidence," and need not "be able to give effect to mitigating evidence in every conceivable manner in which the evidence might be relevant." But since petitioner has not relied on Johnson, as Judge O'Scannlain did below, see I am content to join in full the Court's opinion, which correctly applies	2,029
Justice Stevens	dissenting	false	Ayers v. Belmontes	2006-11-13	null	https://www.courtlistener.com/opinion/145773/ayers-v-belmontes/	https://www.courtlistener.com/api/rest/v3/clusters/145773/	2,006	2006-002	1	5	4	In Lockett v. Ohio, 438 U.S. 586, 98 S. Ct. 2954, 57 L. Ed. 2d 973 (1978), the Court set aside Ohio's death penalty statute as unconstitutional because it unduly restricted the mitigating evidence that a jury could consider in deciding whether to impose the 481 death penalty. In his opinion announcing the judgment, Chief Justice Burger wrote: "There is no perfect procedure for deciding in which cases governmental authority should be used to impose death. But a statute that prevents the sentencer in all capital cases from giving independent mitigating weight to aspects of the defendant's character and record and to circumstances of the offense proffered in mitigation creates the risk that the death penalty will be imposed in spite of factors which may call for a less severe penalty. When the choice is between life and death, that risk is unacceptable and incompatible with the commands of the Eighth and Fourteenth Amendments." Id., at 605[, 98 S. Ct. 2954] (plurality opinion). The respondent here, Fernando Belmontes, was sentenced to death in 1982, a scant four years after Lockett. See People v. Belmontes, 45 Cal. 3d 744, 248 Cal. Rptr. 126, 755 P.2d 310 (1988). Yet at the time of his sentencing, there remained significant residual confusion as to whether the Constitution obligated States to permit juries to consider evidence that, while not extenuating the defendant's culpability for the crime, might nevertheless call for a sentence less than death. Cf. People v. Easley, 34 Cal. 3d 858, 875-880, 196 Cal. Rptr. 309, 671 P.2d 813, 823-827 (1983) (noting arguments on both sides). The California death penalty statute in effect in 1982 quite plainly rested on the assumption that California could preclude the consideration of such evidence. The statute commanded that the jury "shall impose" a death sentence if aggravating circumstances outweigh mitigating circumstances, and limited the jury's inquiry to 11 discrete categories of evidence. See Cal.Penal Code Ann. § 190.3 (West 1988). Other than factors relating to the defendant's age and prior criminal record, every one of those categories relates to the severity of the crime of which the defendant was convicted.[1] And while the eleventh catchall "factor (k)" authorized consideration 482 of "[a]ny other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime," § 190.3(k), factor (k)'s restrictive language sent the unmistakable message that California juries could properly give no mitigating weight to evidence that did not extenuate the severity of the crime. Just a year after respondent's sentencing the California Supreme Court evinced considerable discomfort with factor (k). In People v. Easley, after discussing the possible unconstitutionality of the penalty phase instructions, the court inserted a critical footnote effectively amending factor (k) and expanding the evidence that a California jury could properly consider in deciding whether to impose a death sentence: "In order to avoid potential misunderstanding in the future, trial courtsin instructing on [factor (k)]should inform the jury that it may consider as a mitigating factor `any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime' and any other `aspect of [the] defendant's character or record ... that the defendant proffers as a basis for a sentence less than death.'" 34 Cal. 3d, at 878, n. 10, 196 Cal. Rptr. 309, 671 P.2d, at 826, n. 10 (emphasis added).[2] Although Easley came too late to help respondent, the California Supreme Court's evident concern that capital juries must be permitted to consider evidence beyond that which "extenuates the gravity of the crime" proved prescient. In Skipper v. South Carolina, 476 U.S. 1, 106 S. Ct. 1669, 90 L. Ed. 2d 1 (1986)decided two years before the California Supreme Court affirmed respondent's conviction and therefore fully applicable here, see Griffith v. Kentucky, 479 U.S. 314, 322-323, 107 S. Ct. 708, 93 L. Ed. 2d 649 (1987)we expressly rejected the argument, presented in Justice Powell's separate opinion, that the States retained the authority to determine what mitigating evidence is relevant "as long as they do not foreclose consideration of factors that may tend to reduce the defendant's culpability for his crime," see Skipper, 476 U.S., at 11, 106 S. Ct. 1669 (opinion concurring in judgment). Apart from the traditional sentencing factors such as "[e]vidence concerning the degree of the defendant's participation in the crime, or his age and emotional history," Justice Powell would have held that States could properly exclude evidence during a capital sentencing proceeding. Id., at 13, 106 S. Ct. 1669. The majority, however, took a more expansive view. Although it recognized that the probative force of Skipper's excluded evidence "would not relate specifically to petitioner's culpability for the crime he committed, [there was] no question but that such inferences would be `mitigating' in the sense that they might serve `as a basis for a sentence less than death.'" Id., at 4-5, 106 S. Ct. 1669 (quoting Lockett, 438 U.S., at 604, 98 S. Ct. 2954 (plurality opinion); emphasis added). After Skipper, then, the law was clear: A capital jury must be allowed to consider a broader category of mitigating evidence than normally relevant in noncapital proceedings. Respondent was sentenced, however, before Easley rewrote factor (k) and before 483 Skipper resolved the confusion over whether States had the constitutional latitude to restrict evidence that did not "tend to reduce the defendant's culpability for his crime," 476 U.S., at 11, 106 S. Ct. 1669 (Powell, J., concurring in judgment). As the following review of the record will underscore, that confusion pervaded every aspect of respondent's sentencing hearing. It addled the trial judge, the prosecutor, defense counsel, andinevitablythe jurors themselves. I At the sentencing hearing, after the prosecution put on its casewhich consisted mainly of evidence of respondent's previous conduct, see Belmontes, 45 Cal.3d, at 795, 248 Cal. Rptr. 126, 755 P.2d, at 338-339respondent countered with testimony from his grandfather and his mother. That testimony focused almost entirely on respondent's background: His father drank to excess and savagely beat his wife; his parents were divorced when he was 9 or 10 years old; his mother remarried, but again divorced when respondent was 14 or 15 years old; at this point respondent became difficult to control, and, in 1979, he was sent to the California Youth Authority (Youth Authority); after his release, respondent did not live with his mother, although he kept in touch with her by telephone and was very close with his 15-year-old sister. See generally App. 5-22. Next, the jury heard testimony from Robert Martinez and his wife Darlene, both of whom testified that they were close friends with respondent but admitted that they had seen him only once after he was released from the Youth Authority. Id., at 26-27, 35. Robert further testified that respondent was the best man at his wedding and that, prior to his wedding, the two of them would spend a lot of time together, working on Martinez's car, drinking beer, and smoking marijuana. Id., at 25, 28. The focus of Darlene's testimony was that she was a born-again Christian, and that, when respondent visited Darlene and her husband after his release from the Youth Authority, he told her that he was also a born-again Christian. Id., at 35-36. Respondent then testified on his own behalf. When asked about his childhood, respondent answered that he "can't use it as a crutch to say I am in a situation right now, I'm here now because of that." Id., at 40. He went on to describe his relationships with his father and grandfather and to relate his experience at the Youth Authority. Id., at 41-5. Respondent testified that, while at the Youth Authority, he became involved in a Christian program and developed a relationship with his sponsors in that program, Beverly and Fred Haro. Id., at 46-48. Upon his release, however, respondent started having problems and abandoned his religious commitment, something he had not yet regained fully at the time of the sentencing hearing. Id., at 53-54. Respondent then described his life in prison and stated that, were he given a life sentence, he would attempt to make a positive contribution to society. Id., at 55-58. On cross-examination, most of the prosecutor's questions focused on the sincerity of respondent's religious commitment. Id., at 58-65. The following day, respondent presented testimony from Reverend Dale Barrett and Don Miller, both ministers who worked at the Youth Authority location where respondent was held. Reverend Barrett described the Youth Authority's M-2 program through which respondent was matched with the Haros. Id., at 74-76. He then testified about respondent's involvement with the church and the M-2 program, and how his interactions with respondent led him to believe that he was "salvageable." Id., at 76-82. Miller similarly 484 testified about respondent's participation in the program and his belief that respondent would be adept at speaking with other prisoners about accepting religion. Id., at 92, 95-96; see also id., at 96 (testifying that respondent would "[d]efinitely... be used in the prison system for this sort of activity"). Finally, the jury heard testimony from respondent's sponsors in the M-2 program, Fred and Beverly Haro. The Haros described meeting respondent and their experiences with him. See generally id., at 99-104; 110-112. They also testified about how close they had grown to respondent and about respondent's embrace of religion. Id., at 101-102; 112-113. Taken as a whole, the sentencing testimony supports three conclusions: First, excepting questions concerning the sincerity of respondent's religious convictions, there was no significant dispute about the credibility of the witnesses; second, little if any of the testimony extenuated the severity of respondent's crime; and third, the testimony afforded the jury a principled basis for imposing a sentence other than death. II The prosecutor began his closing argument at the penalty phase by describing "th[e] listing of aggravating and mitigating circumstances" and instructing the jury that it must "weigh one against the other." Id., at 148. While he observed that "there is a proper place for sympathy and passion," ibid., the prosecutor emphasized that the jury could only consider "the kind of sympathy the instruction tells you to consider [i.e., sympathy that] naturally arises or properly arises from the factors in aggravation and mitigation," id., at 149 (emphasis added). He repeated to the jury that its duty was to "simpl[y] weig[h]" certain factors that the judge "will tell you that you may take into account," id., at 150-151, and he went through those listed factors one by one, carefully discussing the evidence that supported each factor, id., at 151-157. When the prosecutor turned to factor (k), he directly addressed the theory "that the defendant's religious experience is within that catchall that relates to the defendant at the time he committed the crime, extenuates the gravity of the crime." Id., at 154. The prosecutor expressed doubt that the jury could consider the evidence at all, stating "I'm not sure it really fits in there. I'm not sure it really fits in any of them. But I think it appears to be a proper subject of consideration." Ibid. And again, after discussing the evidence supporting respondent's religious experience, the prosecutor questioned: "[I]s a religious awakening a basis for determining penalty? That's really the issue, how much does that weigh, or does it weigh on one side or the other." Id., at 155. Ultimately, the prosecutor concluded: "I suppose you can say it would be appropriate becausein this fashion: The defendant may be of value to the community later .... And I think that value to the community is something that you have to weigh in. There's something to that." Ibid. But immediately thereafter, the prosecutor told the jury: "On the other hand, the fact that someone has religion as opposed to someone doesn't should be no grounds for either giving or withholding life .... So if he says he has religion, does he deserve the other penalty, life? I don't think that that should be an influencing factor at all in that respect. I don't think the law contemplates that and I don't think it's right." Ibid. (emphasis added). In conclusion, the prosecutor described the circumstances of the crime and asserted 485 that "[a] dreadful crime requires a dreadful penalty ...." Id., at 160. Following the prosecutor's closing argument, the trial judge allowed respondent to address the jury directly. Respondent again stated that he could not use his childhood as a crutch to explain his mistakes, and he said that his Christianity, too, could not be used as a crutch. Id., at 162. Respondent then asked to keep his life, explaining that he understood that he had to pay for the victim's death, but that he wanted the opportunity to try to improve himself in the future. Id., at 163. Respondent's attorney, John Schick, then addressed the jury. He made no effort to persuade the jurors that the mitigating evidence somehow extenuated the severity of the crime. On the contrary, he said "I'm not going to insult you by telling you I think [the mitigating evidence] excuses in any way what happened here. That is not the reason I asked these people to come in." Id., at 166. Instead, he argued that respondent might be able to make a positive contribution in a prison environment. He spoke about the way that respondent improved after he met Beverly and Fred Haro and about the way that respondent's religion shaped him, observing that religion plays a "very, very vital function ... in anybody's life." Ibid. But Schick took care to emphasize that religion "does not excuse" the murder; rather, the point of that mitigating evidence was to let the jury "know something about the man." Id., at 167, 166. He admitted that respondent "cannot make it on the outside," id., at 167, recognized that respondent needed to be punished, and asked that the jury impose life in prison, a punishment "that has meaning, that has teeth in it ...," id., at 169. Critically, Schick contended that life in prison was an appropriate sentence because respondent could, if given the chance, "contribute something in whatever way he can." Id., at 170. In sum, both counsel agreed that none of the mitigating evidence could detract from the gravity of the crime, and defense counsel even insisted that it would "insult" the jury to suggest that the mitigating evidence "excuses in any way what happened." Id., at 166. III At a conference on jury instructions with the two counsel, the trial judge plainly indicated that he believed that factor (k) circumscribed the mitigating evidence the jury could consider. The judge lifted the principal jury instructions verbatim from 7 of the 11 traditional sentencing factors set forth in the statute, App. 184, but he refused defense counsel's request to give the jury a separate list of potential mitigating factors, id., at 142-143. Among those requested were two that specifically instructed the jury to consider respondent's ability to perform constructive work in prison and to live in confinement without acts of violence. See Brief for Respondent 5, n. 1. Those instructions would have been entirely properindeed, probably mandatedunder our holding in Skipper. But the prosecutor, not having the benefit of Skipper, argued to the judge that "none [of the proposed mitigating instructions] here ... relates to circumstances concerning the crime. I can't conceal the fact that I think that is the determinative factor in this case." App. 142. Agreeing, the judge refused to include the mitigating instructions, making the astonishing statement that the instructions already "seem to be a little over-laden with the factors in mitigation rather than in aggravation." Ibid. Of particular importance, the judge modified defense counsel's request that the jury be told that the instructions did not contain an exhaustive list of mitigating factors. 486 Id., at 141. While he did give such an instruction, ante, at 477-478, he refused to include the following requested reference to nonstatutory factors: "`You may also consider any other circumstances [relating to the case or the defendant, Mr. Belmontes,] as reasons for not imposing the death sentence.'" Brief for Respondent 25-26; contra, App. 186. The judge thus expressly declined to invite the jury to weigh "potentially infinite mitigators," contrary to the Court's assumption today, see ante, at 478. A more accurate summary of his rulings is that the jury could weigh nonstatutory circumstancesbut only if they extenuated the severity of respondent's offense. IV The next morning, the trial judge gave the jurors their instructions. He opened with the unyielding admonition that "[y]ou must accept and follow the rules of law as I state them to you," App. 175, and explained that he was required to read the instructions aloud even though they would have a written copy available during their deliberations, ibid. After reading a set of boilerplate instructions, id., at 176-183, the judge turned to the subject of "determining which penalty is to be imposed on the defendant," id., at 183. He told the jury to "consider all of the evidence ... except as you may be hereafter instructed," ibid. (emphasis added), and then stated: "You shall consider, take into account and be guided by the following factors, if applicable," id., at 183-184. He then proceeded to repeat verbatim 7 of the 11 factors set forth in the statute. Id., at 184. Except for the reference to the "age of the defendant at the time of the crime," ibid., every one of those factors related to the severity of the crime itself. See n. 1, supra. The last of them, the factor (k) instruction, focused the jury's attention on any circumstance that "extenuates the gravity of the crime even though it is not a legal excuse for the crime." Ibid. No factor permitted the jury to consider "any other `aspect of [the] defendant's character or record ... that the defendant proffers as a basis for a sentence less than death.'" Easley, 34 Cal.3d, at 878, n. 10, 196 Cal. Rptr. 309, 671 P.2d, at 826, n. 10 (quoting Lockett, 438 U.S., at 604, 98 S. Ct. 2954 (plurality opinion)). Emphasizing the importance of the listing of aggravating and mitigating circumstances, the judge next instructed the jury that it "shall consider, take into account and be guided by the applicable factors of aggravating and mitigating circumstances upon which you have been instructed." App. 185 (emphasis added). In other words, in reaching its decision, the jury was to consider each of the "applicable factors"here, the seven factors the judge just finished readingand no others. As the Court points out, ante, at 478, the judge did tell the jury that "the mitigating circumstances which I have read for your consideration are given to you merely as examples of some of the factors that you may take into account as reasons for deciding not to impose ... a death sentence...," App. 186. But immediately afterwards, he instructed the jury to "pay careful attention to each of these factors. Any one of them standing alone may support a decision that death is not the appropriate punishment in this case." Ibid. (emphasis added). Since none of "these factors" (save for the age of the defendant) encompassed any mitigating circumstance unrelated to the severity of the crime, the most natural reading of the instruction is that any mitigating factor that lessens the severity of the offense may support a sentence other than death. On this view, any other mitigating circumstance is simply irrelevant to (in the prosecutor's words) the 487 "simple weighing" the jury was tasked with performing. Id., at 150. V Questions asked by at least six different jurors during almost two full days of deliberation gave the judge an ample opportunity to clarify that the testimony offered on behalf of respondent, if credited by the jury, provided a permissible basis for imposing a sentence other than death. Far from eliminating their obvious confusion, his responses cemented the impression that the jurors' lone duty was to weigh specified, limited statutory factors against each other. After a lunch break, the judge reconvened the jury to answer a question that does not appear in the record; in response, the judge merely reread instructions telling the jury that it "must agree, if [it] can," and that it "shall consider, take into account and be guided by the applicable factors of aggravating and mitigating circumstances upon which you have been instructed." Id., at 185, 188-189 (emphasis added). Because all of those factors were traditional sentencing factors, and because none of them permitted consideration of Skipper-type mitigating evidence, the judge's response was the functional equivalent of yet another admonition to disregard most of respondent's evidence. After a colloquy between the judge and four different jurors (Hailstone, Wilson, Norton, and Huckabay) about the likelihood of reaching a unanimous verdict,[3] other jurors asked the judge a series of questions reflecting a concern about whether it was proper to consider aggravating or mitigating circumstances other than those specifically listed in his instructions: "JUROR HERN: The statement about the aggravation and mitigation of the circumstances, now, that was the listing? "THE COURT: That was the listing, yes, ma'am. "JUROR HERN: Of those certain factors we were to decide one or the other and then balance the sheet? "THE COURT: That is right. It is a balancing process. Mr. Meyer? "JUROR MEYER: A specific question, would this be an either/or situation, not a one, if you cannot the other? "THE COURT: No. It is not that. "JUROR MEYER: It is an either/or situation? "THE COURT: Exactly. If you can make that either/or decision. If you cannot, then I will discharge you. "JUROR HAILSTONE: Could I ask a question? I don't know if it is permissible. Is it possible that he could have psychiatric treatment during this time? 488 "THE COURT: That is something you cannot consider in making your decision." App. 191. The judge's responses strongly suggest that the "listing"the listed statutory factorswas all that the jury could properly consider when "balanc[ing] the sheet." See n. 1, supra. But it is difficult, if not impossible, to see how evidence relating to future conduct even arguably "extenuate[d] the gravity of the crime"[4] under factor (k), and none of those listed factors gave the jury the chance to consider whether respondent might redeem himself in prison. Cf. Brown v. Payton, 544 U.S. 133, 157, 125 S. Ct. 1432, 161 L. Ed. 2d 334 (2005) (SOUTER, J., dissenting) ("[I]t would be more than a stretch to say that the seriousness of the crime itself is affected by a defendant's subsequent experience"). And rather than inviting an open-ended review of mitigating factors that would include consideration of the defendant's possible future behavior in prison, the judge's answers emphasized the constraints on the "either/or" decision the jurors had to make.[5] The arguments of counsel, the actual instructions to the jury, and this colloquy all support the conclusion that the jurors understood their task was to run through the listed statutory factors and weigh them against each other to determine whether respondent should be sentenced to death. Very little of respondent's evidence, however, even arguably "extenuate[d] the gravity of the crime." In my judgment, it is for that reason much more likely than not that the jury believed that the law forbade it from giving that evidence any weight at all. The Court of Appeals therefore correctly set aside respondent's death sentence. See Boyde v. California, 494 U.S. 370, 380, 110 S. Ct. 1190, 108 L. Ed. 2d 316 (1990) (plurality opinion) (requiring that a defendant show only that "there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence"). VI Nothing in the Court's opinion in Boyde upsets my view that respondent's death sentence cannot stand. Over the dissent of four Justices, the Court in Boyde both adopted a new "legal standard for reviewing jury instructions claimed to restrict impermissibly a jury's consideration of relevant evidence," id., at 378, 110 S. Ct. 1190, and approved a blatantly atextual interpretation of the unadorned factor (k) instruction, id., at 382, and n. 5, 110 S. Ct. 1190. Applying its new standard and its dubious reading of factor (k), the Court held that there was "not a reasonable likelihood that Boyde's jurors interpreted the trial court's instructions to prevent consideration of mitigating evidence of background and character." Id., at 381, 110 S. Ct. 1190. 489 The Court rejected Boyde's argument that factor (k) made it impossible for the jury to consider testimony that Boyde had won a prize for dance choreography while in prison, which Boyde argued was Skipper-type evidence relating to whether "he could lead a useful life behind bars," 494 U.S., at 382, n. 5, 110 S. Ct. 1190. But the Court did not hold or suggest that factor (k) allowed for the consideration of Skipper-type evidence. Instead, the Court found that the evidence of his dance choreography talents was presented as part of his "overall strategy to portray himself as less culpable than other defendants due to his disadvantaged background and his character strengths," 494 U.S., at 382, n. 5, 110 S. Ct. 1190 (emphasis added), and therefore fell within the ambit of factor (k). Thus, although the Boyde opinion does not state so explicitly, it assumes that the factor (k) instruction would not permit the jury to consider Skipper-type "evidence of postcrime good prison behavior to show that [a defendant] would not pose a danger to the prison community if sentenced to life imprisonment rather than death." 494 U.S., at 382, n. 5, 110 S. Ct. 1190; see also Skipper, 476 U.S., at 4, 106 S. Ct. 1669 (recognizing that inferences regarding a defendant's "probable future conduct if sentenced to life in prison ... would not relate specifically to [the defendant's] culpability for the crime he committed"); Payton, 544 U.S., at 164, 125 S. Ct. 1432 (SOUTER, J., dissenting) ("Boyde did not purport to hold that factor (k) naturally called for consideration of postcrime changes of fundamental views"). Here, respondent contends that there is a reasonable likelihood that the judge's instructions prevented the jury from considering precrime, forward-looking mitigation evidence regarding the possibility that he would lead a constructive life in a prison setting. Not only does the Court's opinion in Boyde fail to support the improbable argument that respondent's mitigating evidence falls within factor (k)'s purview, but its reasoning is entirely consistent with the Court of Appeals' contrary conclusion. Similarly, the Court's recent decision in Payton has little bearing here. In Payton, we granted certiorari to decide whether the Ninth Circuit's decision affirming the District Court's grant of habeas relief "was contrary to the limits on federal habeas review imposed by 28 U.S.C. § 2254(d)." 544 U.S., at 136, 125 S. Ct. 1432. In concluding that it was, the Court relied heavily on the deferential standard of habeas review established by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 110 Stat. 1214. See 544 U.S., at 141, 125 S. Ct. 1432. And Justice BREYER specifically stated that he only joined the five-Justice majority because "this is a case in which Congress' instruction to defer to the reasonable conclusions of state-court judges makes a critical difference," id., at 148, 125 S. Ct. 1432 (concurring opinion), explaining that, were he a California state judge, he "would likely hold that Payton's penalty-phase proceedings violated the Eighth Amendment [because] there might well have been a reasonable likelihood that Payton's jury interpreted factor (k) in a way that prevented it from considering constitutionally relevant mitigating evidencenamely, evidence of his postcrime religious conversion," ibid. (citation, alteration, and internal quotation marks omitted). The fact that Payton was a case about deference under AEDPA, rather than about a proper understanding of the scope of factor (k), is cause enough to conclude that it does not mandate any specific outcome here. Indeed, given that respondent's trial occurred the same year and involved the same jury instructions as Payton's, compare 544 U.S., at 156, 125 S. Ct. 1432 (SOUTER, J., dissenting) ("`[Y]ou shall 490 consider all of the evidence which has been received during any part of the trial in this case, except as you may be hereafter instructed'"), with App. 183 (same), and because AEDPA does not apply to respondent's case, there are persuasive reasons for concluding that Justice SOUTER's powerful reasoning in Payton, rather than the majority's deferential review of a California court's opinion, should guide our decision. In his dissenting opinion, Justice SOUTER pointed out that Payton's trial had occurred both before the California Supreme Court had directed trial judges to supplement the factor (k) instruction and before the legislature had amended it. See 544 U.S., at 158, 125 S. Ct. 1432. Without those changes, he correctly concluded, "any claim that factor (k) called for consideration of a defendant's personal development in the wake of his crime was simply at odds with common attitudes and the English language." Id., at 158-159, 125 S. Ct. 1432. Moreover, Payton did not deal with a record that discloses actual confusion among jurors, as this record does. See supra, at 486-488. Nor did it involve a defense attorney who, bolstering the prosecutor's claim that factor (k) did not allow the jury to consider respondent's religious conversion, refused to "insult" the jury "by telling you I think [the mitigating evidence] excuses in any way what happened here," App. 166. Therefore, even ignoring its significantly different procedural posture, Payton, like Boyde, falls far short of compelling the result that the Court reaches today. VII Instead of accepting that lay jurors would almost certainly give the words "circumstance which extenuates the gravity of the crime" their ordinary meaning, the Court insists that they would have disregarded their instructions and considered evidence that had nothing whatsoever to do with the crime. This conclusion seems to me to rest on an assumption that the jury had an uncanny ability to predict that future opinions would interpret factor (k) to mean something that neither the judge nor the lawyers thought it meant. Surely the more natural inference is that the jury followed its instructions. See Greer v. Miller, 483 U.S. 756, 766, n. 8, 107 S. Ct. 3102, 97 L. Ed. 2d 618 (1987) (describing our "presumption" that juries follow instructions). The Court's highly technical parsing of factor (k) depends on linguistic distinctions which would only occur to trained lawyers. See, e.g., ante, at 477 (calling attention to the "dichotomy within factor (k) ... between a legal excuse and an extenuating circumstance"). And even the lawyers are confused. The prosecutor in Payton believed that "factor (k) d[oes] not permit consideration of postcrime rehabilitation evidence." Ante, at 474. While the majority now blithely characterizes this view as "incorrec[t]," ibid., it is the natural reading of factor (k), and one that jurors would have been likely to accept. Similarly, present-day counsel for the State of California expressed confusion at oral argument as to whether it would have been constitutional for the trial judge to instruct the jury that it could not consider any mitigating evidence unless it extenuated the gravity of the crime, see Tr. of Oral Arg. 8-9 (retreating from the statement that "[i]t would appear not to be" constitutional). The Court cannot seriously insist that a group of 12 laypersons had such command of constitutional law that, anticipating Skipper, they took into account evidence outside the ambit of their jury instructions. The Court also apparently believes that when the prosecutor in this case suggested 491 that factor (k) meant exactly what it said, supra, at 475-476, the jury would have taken that as merely a comment on respondent's credibility, ante, at 476. But this rests on a clear misreading of the record. Although the prosecutor did argue that respondent lacked sincere religious convictions, he also suggested quite powerfully that the law did not permit the jury to consider those convictions, however sincerely held. See App. 155 ("I don't think the law contemplates that and I don't think it's right" (emphasis added)). Nor is there any support for the Court's surprising and inherently contradictory view that while the prosecutor here "commented that the law did not contemplate jury consideration of respondent's religious conversion," ante, at 477, "[n]othing the prosecutor said would have convinced the jury that it was forbidden from even considering respondent's religious conversion," ibid. (emphasis added). Admittedly, as the Court points out, there is a distinction between limiting the jury's consideration to "circumstance[s] of the crime" that extenuate its severity, and limiting that consideration to "any other circumstance that might excuse the crime," see ante, at 475 (internal quotation marks omitted). It is highly unlikely, however, that jurors would note that subtle distinction, and even more unlikely that they would consider it significant. Both interpretations of the phrase focus the jury's attention on the crime, and neither includes the evidence at issue in Skipper, which "[a]lmost by definition ... neither excuses the defendant's crime nor reduces his responsibility for its commission." 476 U.S., at 12, 106 S. Ct. 1669 (Powell, J., concurring in judgment). Read however generously, the factor (k) limitation remains unconstitutional. The Court makes a similarly unpersuasive argument based on the dubious premise that a juror would understand "remorse" to be a species of postcrime evidence that serves to lessen or excuse the crime itself. Even if that were true, it would not follow that jurors could somehow divine that respondent's evidence of a capacity to redeem himself would both "extenuate his offense and render him less deserving of a death sentence." Ante, at 475.[6] VIII Unless the jurors who imposed the death sentence somehow guessed at the breadth of the rule first announced in Lockett, that sentence was the product of an unconstitutional proceeding. Ironically, both Chief Justice Burger (who wrote the plurality opinion in Lockett) and Justice Powell (who joined it) understood the Lockett rule to extend only to evidence "that lessens the defendant's culpability for the crime." Skipper, 476 U.S., at 12, 106 S. Ct. 1669 (Powell, J., joined by Burger, C.J., and Rehnquist, J., concurring in judgment). Given that the authors of Lockett themselves disagreed as to its scope, I am not as sanguine as the Court that the lay members of the jury somehow knew, notwithstanding clear jury instructions, that the testimony presented at the sentencing phase of respondent's trial 492 could be part of the "simple weighing" the jury was supposed to undertake. When the trial judge told the jurors to consider all the evidence "except as you may be hereinafter instructed," App. 183, he directed them to limit their consideration to the traditional sentencing factors set forth in the statute. When the prosecutor told the jurors that "I don't think the law contemplates" that respondent's religion lessened the seriousness of respondent's offense, id., at 155, he reinforced the impression that the jury should confine its deliberations to the listing. And once defense counsel agreed with the prosecutor, saying that "I'm not going to insult you by telling you I think [the mitigating evidence] excuses in any way what happened here," id., at 166, surely at least some of the jurors would have doubted the propriety of speculating about respondent's future conduct in prison as a basis for imposing a sentence less than death. The Court today heaps speculation on speculation to reach the strange conclusion, out of step with our case law, that a properly instructed jury disregarded its instructions and considered evidence that fell outside the narrow confines of factor (k). Holding to the contrary, the Court insists, would reduce two days of sentencing testimony to "a virtual charade," ante, at 474 (internal quotation marks omitted) but in so concluding the Court necessarily finds that the judge's instructions were themselves such a "charade" that the jury paid them no heed. I simply cannot believe that the jurors took it upon themselves to consider testimony they were all but told they were forbidden from considering; in my view, they must at the very least have been confused as to whether the evidence could appropriately be considered. That confusion has created a risk of error sufficient to warrant relief for a man who has spent more than half his life on death row. Cf. Lackey v. Texas, 514 U.S. 1045, 115 S. Ct. 1421, 131 L. Ed. 2d 304 (1995) (STEVENS, J., respecting denial of certiorari). The incremental value to California of carrying out a death sentence at this late date is far outweighed by the interest in maintaining confidence in the fairness of any proceeding that results in a State's decision to take the life of one of its citizens. See Gardner v. Florida, 430 U.S. 349, 358, 97 S. Ct. 1197, 51 L. Ed. 2d 393 (1977) (plurality opinion). Accordingly, I respectfully dissent.	In the Court set aside Ohio's death penalty statute as unconstitutional because it unduly restricted the mitigating evidence that a jury could consider in deciding whether to impose the 48 death penalty. In his opinion announcing the judgment, Chief Justice Burger wrote: "There is no perfect procedure for deciding in which cases governmental authority should be used to impose death. But a statute that prevents the sentencer in all capital cases from giving independent mitigating weight to aspects of the defendant's character and record and to circumstances of the offense proffered in mitigation creates the risk that the death penalty will be imposed in spite of factors which may call for a less severe penalty. When the choice is between life and death, that risk is unacceptable and incompatible with the commands of the Eighth and Fourteenth Amendments." [, ] The respondent here, Fernando was sentenced to death in 982, a scant four years after See Yet at the time of his sentencing, there remained significant residual confusion as to whether the Constitution obligated States to permit juries to consider evidence that, while not extenuating the defendant's culpability for the crime, might nevertheless call for a sentence less than death. Cf. The California death penalty statute in effect in 982 quite plainly rested on the assumption that California could preclude the consideration of such evidence. The statute commanded that the jury "shall impose" a death sentence if aggravating circumstances outweigh mitigating circumstances, and limited the jury's inquiry to discrete categories of evidence. See Cal.Penal Code Ann. 90.3 Other than factors relating to the defendant's age and prior criminal record, every one of those categories relates to the severity of the crime of which the defendant was convicted.[] And while the eleventh catchall "factor (k)" authorized consideration 482 of "[a]ny other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime," 90.3(k), factor (k)'s restrictive language sent the unmistakable message that California juries could properly give no mitigating weight to evidence that did not extenuate the severity of the crime. Just a year after respondent's sentencing the California Supreme Court evinced considerable discomfort with factor (k). In after discussing the possible unconstitutionality of the penalty phase instructions, the court inserted a critical footnote effectively amending factor (k) and expanding the evidence that a California jury could properly consider in deciding whether to impose a death sentence: "In order to avoid potential misunderstanding in the future, trial courtsin instructing on [factor (k)]should inform the jury that it may consider as a mitigating factor `any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime' and any other `aspect of [the] defendant's character or record that the defendant proffers as a basis for a sentence less than death.'" n. 0, n. 0[2] Although came too late to help respondent, the California Supreme Court's evident concern that capital juries must be permitted to consider evidence beyond that which "extenuates the gravity of the crime" proved prescient. In decided two years before the California Supreme Court affirmed respondent's conviction and therefore fully applicable here, see we expressly rejected the argument, presented in Justice Powell's separate opinion, that the States retained the authority to determine what mitigating evidence is relevant "as long as they do not foreclose consideration of factors that may tend to reduce the defendant's culpability for his crime," see (opinion concurring in judgment). Apart from the traditional sentencing factors such as "[e]vidence concerning the degree of the defendant's participation in the crime, or his age and emotional history," Justice Powell would have held that States could properly exclude evidence during a capital sentencing proceeding. The majority, however, took a more expansive view. Although it recognized that the probative force of 's excluded evidence "would not relate specifically to petitioner's culpability for the crime he committed, [there was] no question but that such inferences would be `mitigating' in the sense that they might serve `as a basis for a sentence less than death.'" (quoting ; emphasis added). After then, the law was clear: A capital jury must be allowed to consider a broader category of mitigating evidence than normally relevant in noncapital proceedings. Respondent was sentenced, however, before rewrote factor (k) and before 483 resolved the confusion over whether States had the constitutional latitude to restrict evidence that did not "tend to reduce the defendant's culpability for his crime," (Powell, J., concurring in judgment). As the following review of the record will underscore, that confusion pervaded every aspect of respondent's sentencing hearing. It addled the trial judge, the prosecutor, defense counsel, andinevitablythe jurors themselves. I At the sentencing hearing, after the prosecution put on its casewhich consisted mainly of evidence of respondent's previous conduct, see -339respondent countered with testimony from his grandfather and his mother. That testimony focused almost entirely on respondent's background: His father drank to excess and savagely beat his wife; his parents were divorced when he was 9 or 0 years old; his mother remarried, but again divorced when respondent was 4 or 5 years old; at this point respondent became difficult to control, and, in 979, he was sent to the California Youth Authority (Youth Authority); after his release, respondent did not live with his mother, although he kept in touch with her by telephone and was very close with his 5-year-old sister. See generally App. 5-22. Next, the jury heard testimony from Robert Martinez and his wife Darlene, both of whom testified that they were close friends with respondent but admitted that they had seen him only once after he was released from the Youth Authority. Robert further testified that respondent was the best man at his wedding and that, prior to his wedding, the two of them would spend a lot of time together, working on Martinez's car, drinking beer, and smoking marijuana. The focus of Darlene's testimony was that she was a born-again Christian, and that, when respondent visited Darlene and her husband after his release from the Youth Authority, he told her that he was also a born-again Christian. Respondent then testified on his own behalf. When asked about his childhood, respondent answered that he "can't use it as a crutch to say I am in a situation right now, I'm here now because of that." He went on to describe his relationships with his father and grandfather and to relate his experience at the Youth Authority. Respondent testified that, while at the Youth Authority, he became involved in a Christian program and developed a relationship with his sponsors in that program, Beverly and Fred Haro. Upon his release, however, respondent started having problems and abandoned his religious commitment, something he had not yet regained fully at the time of the sentencing hearing. Respondent then described his life in prison and stated that, were he given a life sentence, he would attempt to make a positive contribution to society. On cross-examination, most of the prosecutor's questions focused on the sincerity of respondent's religious commitment. The following day, respondent presented testimony from Reverend Dale Barrett and Don Miller, both ministers who worked at the Youth Authority location where respondent was held. Reverend Barrett described the Youth Authority's M-2 program through which respondent was matched with the Haros. He then testified about respondent's involvement with the church and the M-2 program, and how his interactions with respondent led him to believe that he was "salvageable." Miller similarly 484 testified about respondent's participation in the program and his belief that respondent would be adept at speaking with other prisoners about accepting religion. ; see also Finally, the jury heard testimony from respondent's sponsors in the M-2 program, Fred and Beverly Haro. The Haros described meeting respondent and their experiences with him. See generally ; 0-2. They also testified about how close they had grown to respondent and about respondent's embrace of religion. ; 2-3. Taken as a whole, the sentencing testimony supports three conclusions: First, excepting questions concerning the sincerity of respondent's religious convictions, there was no significant dispute about the credibility of the witnesses; second, little if any of the testimony extenuated the severity of respondent's crime; and third, the testimony afforded the jury a principled basis for imposing a sentence other than death. II The prosecutor began his closing argument at the penalty phase by describing "th[e] listing of aggravating and mitigating circumstances" and instructing the jury that it must "weigh one against the other." While he observed that "there is a proper place for sympathy and passion," ib the prosecutor emphasized that the jury could only consider "the kind of sympathy the instruction tells you to consider [i.e., sympathy that] naturally arises or properly arises from the factors in aggravation and mitigation," He repeated to the jury that its duty was to "simpl[y] weig[h]" certain factors that the judge "will tell you that you may take into account," and he went through those listed factors one by one, carefully discussing the evidence that supported each factor, When the prosecutor turned to factor (k), he directly addressed the theory "that the defendant's religious experience is within that catchall that relates to the defendant at the time he committed the crime, extenuates the gravity of the crime." The prosecutor expressed doubt that the jury could consider the evidence at all, stating "I'm not sure it really fits in there. I'm not sure it really fits in any of them. But I think it appears to be a proper subject of consideration." And again, after discussing the evidence supporting respondent's religious experience, the prosecutor questioned: "[I]s a religious awakening a basis for determining penalty? That's really the issue, how much does that weigh, or does it weigh on one side or the other." Ultimately, the prosecutor concluded: "I suppose you can say it would be appropriate becausein this fashion: The defendant may be of value to the community later And I think that value to the community is something that you have to weigh in. There's something to that." But immediately thereafter, the prosecutor told the jury: "On the other hand, the fact that someone has religion as opposed to someone doesn't should be no grounds for either giving or withholding life So if he says he has religion, does he deserve the other penalty, life? I don't think that that should be an influencing factor at all in that respect. I don't think the law contemplates that and I don't think it's right." In conclusion, the prosecutor described the circumstances of the crime and asserted 485 that "[a] dreadful crime requires a dreadful penalty" Following the prosecutor's closing argument, the trial judge allowed respondent to address the jury directly. Respondent again stated that he could not use his childhood as a crutch to explain his mistakes, and he that his Christianity, too, could not be used as a crutch. Respondent then asked to keep his life, explaining that he understood that he had to pay for the victim's death, but that he wanted the opportunity to try to improve himself in the future. Respondent's attorney, John Schick, then addressed the jury. He made no effort to persuade the jurors that the mitigating evidence somehow extenuated the severity of the crime. On the contrary, he "I'm not going to insult you by telling you I think [the mitigating evidence] excuses in any way what happened here. That is not the reason I asked these people to come in." Instead, he argued that respondent might be able to make a positive contribution in a prison environment. He spoke about the way that respondent improved after he met Beverly and Fred Haro and about the way that respondent's religion shaped him, observing that religion plays a "very, very vital function in anybody's life." But Schick took care to emphasize that religion "does not excuse" the murder; rather, the point of that mitigating evidence was to let the jury "know something about the man." He admitted that respondent "cannot make it on the outside," recognized that respondent needed to be punished, and asked that the jury impose life in prison, a punishment "that has meaning, that has teeth in it," Critically, Schick contended that life in prison was an appropriate sentence because respondent could, if given the chance, "contribute something in whatever way he can." In sum, both counsel agreed that none of the mitigating evidence could detract from the gravity of the crime, and defense counsel even insisted that it would "insult" the jury to suggest that the mitigating evidence "excuses in any way what happened." III At a conference on jury instructions with the two counsel, the trial judge plainly indicated that he believed that factor (k) circumscribed the mitigating evidence the jury could consider. The judge lifted the principal jury instructions verbatim from 7 of the traditional sentencing factors set forth in the statute, App. 84, but he refused defense counsel's request to give the jury a separate list of potential mitigating factors, Among those requested were two that specifically instructed the jury to consider respondent's ability to perform constructive work in prison and to live in confinement without acts of violence. See Brief for Respondent 5, n. Those instructions would have been entirely properindeed, probably mandatedunder our holding in But the prosecutor, not having the benefit of argued to the judge that "none [of the proposed mitigating instructions] here relates to circumstances concerning the crime. I can't conceal the fact that I think that is the determinative factor in this case." App. 42. Agreeing, the judge refused to include the mitigating instructions, making the astonishing statement that the instructions already "seem to be a little over-laden with the factors in mitigation rather than in aggravation." Of particular importance, the judge modified defense counsel's request that the jury be told that the instructions did not contain an exhaustive list of mitigating factors. 486 While he did give such an instruction, ante, at 477-478, he refused to include the following requested reference to nonstatutory factors: "`You may also consider any other circumstances [relating to the case or the defendant, Mr.] as reasons for not imposing the death sentence.'" Brief for Respondent 25-26; contra, App. 86. The judge thus expressly declined to invite the jury to weigh "potentially infinite mitigators," contrary to the Court's assumption today, see ante, at 478. A more accurate summary of his rulings is that the jury could weigh nonstatutory circumstancesbut only if they extenuated the severity of respondent's offense. IV The next morning, the trial judge gave the jurors their instructions. He opened with the unyielding admonition that "[y]ou must accept and follow the rules of law as I state them to you," App. 75, and explained that he was required to read the instructions aloud even though they would have a written copy available during their deliberations, After reading a set of boilerplate instructions, the judge turned to the subject of "determining which penalty is to be imposed on the defendant," He told the jury to "consider all of the evidence except as you may be hereafter instructed," and then stated: "You shall consider, take into account and be guided by the following factors, if applicable," -84. He then proceeded to repeat verbatim 7 of the factors set forth in the statute. Except for the reference to the "age of the defendant at the time of the crime," ib every one of those factors related to the severity of the crime itself. See n. The last of them, the factor (k) instruction, focused the jury's attention on any circumstance that "extenuates the gravity of the crime even though it is not a legal excuse for the crime." No factor permitted the jury to consider "any other `aspect of [the] defendant's character or record that the defendant proffers as a basis for a sentence less than death.'" n. 0, n. 0 (quoting ). Emphasizing the importance of the listing of aggravating and mitigating circumstances, the judge next instructed the jury that it "shall consider, take into account and be guided by the applicable factors of aggravating and mitigating circumstances upon which you have been instructed." App. 85 In other words, in reaching its decision, the jury was to consider each of the "applicable factors"here, the seven factors the judge just finished readingand no others. As the Court points out, ante, at 478, the judge did tell the jury that "the mitigating circumstances which I have read for your consideration are given to you merely as examples of some of the factors that you may take into account as reasons for deciding not to impose a death sentence.," App. 86. But immediately afterwards, he instructed the jury to "pay careful attention to each of these factors. Any one of them standing alone may support a decision that death is not the appropriate punishment in this case." Since none of "these factors" (save for the age of the defendant) encompassed any mitigating circumstance unrelated to the severity of the crime, the most natural reading of the instruction is that any mitigating factor that lessens the severity of the offense may support a sentence other than death. On this view, any other mitigating circumstance is simply irrelevant to (in the prosecutor's words) the 487 "simple weighing" the jury was tasked with performing. at 50. V Questions asked by at least six different jurors during almost two full days of deliberation gave the judge an ample opportunity to clarify that the testimony offered on behalf of respondent, if credited by the jury, provided a permissible basis for imposing a sentence other than death. Far from eliminating their obvious confusion, his responses cemented the impression that the jurors' lone duty was to weigh specified, limited statutory factors against each other. After a lunch break, the judge reconvened the jury to answer a question that does not appear in the record; in response, the judge merely reread instructions telling the jury that it "must agree, if [it] can," and that it "shall consider, take into account and be guided by the applicable factors of aggravating and mitigating circumstances upon which you have been instructed." at 85, 88-89 Because all of those factors were traditional sentencing factors, and because none of them permitted consideration of -type mitigating evidence, the judge's response was the functional equivalent of yet another admonition to disregard most of respondent's evidence. After a colloquy between the judge and four different jurors (Hailstone, Wilson, Norton, and Huckabay) about the likelihood of reaching a unanimous verdict,[3] other jurors asked the judge a series of questions reflecting a concern about whether it was proper to consider aggravating or mitigating circumstances other than those specifically listed in his instructions: "JUROR HERN: The statement about the aggravation and mitigation of the circumstances, now, that was the listing? "THE COURT: That was the listing, yes, ma'am. "JUROR HERN: Of those certain factors we were to decide one or the other and then balance the sheet? "THE COURT: That is right. It is a balancing process. Mr. Meyer? "JUROR MEYER: A specific question, would this be an either/or situation, not a one, if you cannot the other? "THE COURT: No. It is not that. "JUROR MEYER: It is an either/or situation? "THE COURT: Exactly. If you can make that either/or decision. If you cannot, then I will discharge you. "JUROR HAILSTONE: Could I ask a question? I don't know if it is permissible. Is it possible that he could have psychiatric treatment during this time? 488 "THE COURT: That is something you cannot consider in making your decision." App. 9. The judge's responses strongly suggest that the "listing"the listed statutory factorswas all that the jury could properly consider when "balanc[ing] the sheet." See n. But it is difficult, if not impossible, to see how evidence relating to future conduct even arguably "extenuate[d] the gravity of the crime"[4] under factor (k), and none of those listed factors gave the jury the chance to consider whether respondent might redeem himself in prison. Cf. 544 U.S. 33, 57, 25 S. Ct. 432, 6 L. Ed. 2d 334 ("[I]t would be more than a stretch to say that the seriousness of the crime itself is affected by a defendant's subsequent experience"). And rather than inviting an open-ended review of mitigating factors that would include consideration of the defendant's possible future behavior in prison, the judge's answers emphasized the constraints on the "either/or" decision the jurors had to make.[5] The arguments of counsel, the actual instructions to the jury, and this colloquy all support the conclusion that the jurors understood their task was to run through the listed statutory factors and weigh them against each other to determine whether respondent should be sentenced to death. Very little of respondent's evidence, however, even arguably "extenuate[d] the gravity of the crime." In my judgment, it is for that reason much more likely than not that the jury believed that the law forbade it from giving that evidence any weight at all. The Court of Appeals therefore correctly set aside respondent's death sentence. See 0 S. Ct. 90, 08 L. Ed. 2d 36 (990) (requiring that a defendant show only that "there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence"). VI Nothing in the Court's opinion in Boyde upsets my view that respondent's death sentence cannot stand. Over the dissent of four Justices, the Court in Boyde both adopted a new "legal standard for reviewing jury instructions claimed to restrict impermissibly a jury's consideration of relevant evidence," 0 S. Ct. 90, and approved a blatantly atextual interpretation of the unadorned factor (k) instruction, and n. 5, 0 S. Ct. 90. Applying its new standard and its dubious reading of factor (k), the Court held that there was "not a reasonable likelihood that Boyde's jurors interpreted the trial court's instructions to prevent consideration of mitigating evidence of background and character." at 38, 0 S. Ct. 90. 489 The Court rejected Boyde's argument that factor (k) made it impossible for the jury to consider testimony that Boyde had won a prize for dance choreography while in prison, which Boyde argued was -type evidence relating to whether "he could lead a useful life behind bars," 494 U.S., n. 5, 0 S. Ct. 90. But the Court did not hold or suggest that factor (k) allowed for the consideration of -type evidence. Instead, the Court found that the evidence of his dance choreography talents was presented as part of his "overall strategy to portray himself as less culpable than other defendants due to his disadvantaged background and his character strengths," 494 U.S., n. 5, 0 S. Ct. 90 and therefore fell within the ambit of factor (k). Thus, although the Boyde opinion does not state so explicitly, it assumes that the factor (k) instruction would not permit the jury to consider -type "evidence of postcrime good prison behavior to show that [a defendant] would not pose a danger to the prison community if sentenced to life imprisonment rather than death." 494 U.S., n. 5, 0 S. Ct. 90; see also (recognizing that inferences regarding a defendant's "probable future conduct if sentenced to life in prison would not relate specifically to [the defendant's] culpability for the crime he committed"); 544 U.S., at 64, 25 S. Ct. 432 ("Boyde did not purport to hold that factor (k) naturally called for consideration of postcrime changes of fundamental views"). Here, respondent contends that there is a reasonable likelihood that the judge's instructions prevented the jury from considering precrime, forward-looking mitigation evidence regarding the possibility that he would lead a constructive life in a prison setting. Not only does the Court's opinion in Boyde fail to support the improbable argument that respondent's mitigating evidence falls within factor (k)'s purview, but its reasoning is entirely consistent with the Court of Appeals' contrary conclusion. Similarly, the Court's recent decision in has little bearing here. In we granted certiorari to decide whether the Ninth Circuit's decision affirming the District Court's grant of habeas relief "was contrary to the limits on federal habeas review imposed by 28 U.S.C. 2254(d)." 544 U.S., 6, 25 S. Ct. 432. In concluding that it was, the Court relied heavily on the deferential standard of habeas review established by the Antiterrorism and Effective Death Penalty Act of 996 (AEDPA), 0 Stat. 24. See 544 U.S., 25 S. Ct. 432. And Justice BREYER specifically stated that he only joined the five-Justice majority because "this is a case in which Congress' instruction to defer to the reasonable conclusions of state-court judges makes a critical difference," 25 S. Ct. 432 (concurring opinion), explaining that, were he a California state judge, he "would likely hold that 's penalty-phase proceedings violated the Eighth Amendment [because] there might well have been a reasonable likelihood that 's jury interpreted factor (k) in a way that prevented it from considering constitutionally relevant mitigating evidencenamely, evidence of his postcrime religious conversion," The fact that was a case about deference under AEDPA, rather than about a proper understanding of the scope of factor (k), is cause enough to conclude that it does not mandate any specific outcome here. Indeed, given that respondent's trial occurred the same year and involved the same jury instructions as 's, 544 U.S., at 56, 25 S. Ct. 432 ("`[Y]ou shall 490 consider all of the evidence which has been received during any part of the trial in this case, except as you may be hereafter instructed'"), with App. 83 (same), and because AEDPA does not apply to respondent's case, there are persuasive reasons for concluding that Justice SOUTER's powerful reasoning in rather than the majority's deferential review of a California court's opinion, should guide our decision. In his dissenting opinion, Justice SOUTER pointed out that 's trial had occurred both before the California Supreme Court had directed trial judges to supplement the factor (k) instruction and before the legislature had amended it. See 544 U.S., at 58, 25 S. Ct. 432. Without those changes, he correctly concluded, "any claim that factor (k) called for consideration of a defendant's personal development in the wake of his crime was simply at odds with common attitudes and the English language." at 58-59, 25 S. Ct. 432. Moreover, did not deal with a record that discloses actual confusion among jurors, as this record does. See Nor did it involve a defense attorney who, bolstering the prosecutor's claim that factor (k) did not allow the jury to consider respondent's religious conversion, refused to "insult" the jury "by telling you I think [the mitigating evidence] excuses in any way what happened here," App. 66. Therefore, even ignoring its significantly different procedural posture, like Boyde, falls far short of compelling the result that the Court reaches today. VII Instead of accepting that lay jurors would almost certainly give the words "circumstance which extenuates the gravity of the crime" their ordinary meaning, the Court insists that they would have disregarded their instructions and considered evidence that had nothing whatsoever to do with the crime. This conclusion seems to me to rest on an assumption that the jury had an uncanny ability to predict that future opinions would interpret factor (k) to mean something that neither the judge nor the lawyers thought it meant. Surely the more natural inference is that the jury followed its instructions. See 07 S. Ct. 302, 97 L. Ed. 2d 68 The Court's highly technical parsing of factor (k) depends on linguistic distinctions which would only occur to trained lawyers. See, e.g., ante, at 477 (calling attention to the "dichotomy within factor (k) between a legal excuse and an extenuating circumstance"). And even the lawyers are confused. The prosecutor in believed that "factor (k) d[oes] not permit consideration of postcrime rehabilitation evidence." Ante, at 474. While the majority now blithely characterizes this view as "incorrec[t]," ib it is the natural reading of factor (k), and one that jurors would have been likely to accept. Similarly, present-day counsel for the State of California expressed confusion at oral argument as to whether it would have been constitutional for the trial judge to instruct the jury that it could not consider any mitigating evidence unless it extenuated the gravity of the crime, see Tr. of Oral Arg. 8-9 (retreating from the statement that "[i]t would appear not to be" constitutional). The Court cannot seriously insist that a group of 2 laypersons had such command of constitutional law that, anticipating they took into account evidence outside the ambit of their jury instructions. The Court also apparently believes that when the prosecutor in this case suggested 49 that factor (k) meant exactly what it the jury would have taken that as merely a comment on respondent's credibility, ante, at 476. But this rests on a clear misreading of the record. Although the prosecutor did argue that respondent lacked sincere religious convictions, he also suggested quite powerfully that the law did not permit the jury to consider those convictions, however sincerely held. See App. 55 ("I don't think the law contemplates that and I don't think it's right" ). Nor is there any support for the Court's surprising and inherently contradictory view that while the prosecutor here "commented that the law did not contemplate jury consideration of respondent's religious conversion," ante, at 477, "[n]othing the prosecutor would have convinced the jury that it was forbidden from even considering respondent's religious conversion," Admittedly, as the Court points out, there is a distinction between limiting the jury's consideration to "circumstance[s] of the crime" that extenuate its severity, and limiting that consideration to "any other circumstance that might excuse the crime," see ante, at 475 (internal quotation marks omitted). It is highly unlikely, however, that jurors would note that subtle distinction, and even more unlikely that they would consider it significant. Both interpretations of the phrase focus the jury's attention on the crime, and neither includes the evidence at issue in which "[a]lmost by definition neither excuses the defendant's crime nor reduces his responsibility for its commission." 476 U.S., at 2, (Powell, J., concurring in judgment). Read however generously, the factor (k) limitation remains unconstitutional. The Court makes a similarly unpersuasive argument based on the dubious premise that a juror would understand "remorse" to be a species of postcrime evidence that serves to lessen or excuse the crime itself. Even if that were true, it would not follow that jurors could somehow divine that respondent's evidence of a capacity to redeem himself would both "extenuate his offense and render him less deserving of a death sentence." Ante, at 475.[6] VIII Unless the jurors who imposed the death sentence somehow guessed at the breadth of the rule first announced in that sentence was the product of an unconstitutional proceeding. Ironically, both Chief Justice Burger (who wrote the plurality opinion in ) and Justice Powell (who joined it) understood the rule to extend only to evidence "that lessens the defendant's culpability for the crime." 476 U.S., at 2, (Powell, J., joined by Burger, C.J., and Rehnquist, J., concurring in judgment). Given that the authors of themselves disagreed as to its scope, I am not as sanguine as the Court that the lay members of the jury somehow knew, notwithstanding clear jury instructions, that the testimony presented at the sentencing phase of respondent's trial 492 could be part of the "simple weighing" the jury was supposed to undertake. When the trial judge told the jurors to consider all the evidence "except as you may be hereinafter instructed," App. 83, he directed them to limit their consideration to the traditional sentencing factors set forth in the statute. When the prosecutor told the jurors that "I don't think the law contemplates" that respondent's religion lessened the seriousness of respondent's offense, he reinforced the impression that the jury should confine its deliberations to the listing. And once defense counsel agreed with the prosecutor, saying that "I'm not going to insult you by telling you I think [the mitigating evidence] excuses in any way what happened here," surely at least some of the jurors would have doubted the propriety of speculating about respondent's future conduct in prison as a basis for imposing a sentence less than death. The Court today heaps speculation on speculation to reach the strange conclusion, out of step with our case law, that a properly instructed jury disregarded its instructions and considered evidence that fell outside the narrow confines of factor (k). Holding to the contrary, the Court insists, would reduce two days of sentencing testimony to "a virtual charade," ante, at 474 (internal quotation marks omitted) but in so concluding the Court necessarily finds that the judge's instructions were themselves such a "charade" that the jury paid them no heed. I simply cannot believe that the jurors took it upon themselves to consider testimony they were all but told they were forbidden from considering; in my view, they must at the very least have been confused as to whether the evidence could appropriately be considered. That confusion has created a risk of error sufficient to warrant relief for a man who has spent more than half his life on death row. Cf. 54 U.S. 045, 5 S. Ct. 42, 3 L. Ed. 2d 304 (995) The incremental value to California of carrying out a death sentence at this late date is far outweighed by the interest in maintaining confidence in the fairness of any proceeding that results in a State's decision to take the life of one of its citizens. See 97 S. Ct. 97, 5 L. Ed. 2d 393 (977) Accordingly, I respectfully dissent.	2,030
Justice O'Connor	majority	false	Miller v. French	2000-06-19	null	https://www.courtlistener.com/opinion/118378/miller-v-french/	https://www.courtlistener.com/api/rest/v3/clusters/118378/	2,000	1999-078	1	5	4	The Prison Litigation Reform Act of 1995 (PLRA) establishes standards for the entry and termination of prospective relief in civil actions challenging prison conditions. §§ 801-810, 110 Stat. 1321-66 to 1321-77. If prospective relief under an existing injunction does not satisfy these standards, a defendant or intervenor is entitled to "immediate termination" of that relief. 18 U.S. C. § 3626(b)(2) (1994 ed., Supp. IV). And under the PLRA's "automatic stay" provision, a motion to terminate prospective relief "shall operate as a stay" of that relief during the period beginning 30 days after the filing of the motion (extendable to up to 90 days for "good cause") and ending when the court rules on the motion. §§ 3626(e)(2), (3). The superintendent of Indiana's Pendleton Correctional Facility, which is currently operating under an ongoing injunction to remedy violations of the Eighth Amendment regarding conditions of confinement, filed a motion to terminate prospective relief under the PLRA. Respondent prisoners moved to enjoin the operation of the automatic stay provision of § 3626(e)(2), arguing that it is unconstitutional. The District Court enjoined the stay, and the Court of Appeals for the Seventh Circuit affirmed. We must decide whether a district court may enjoin the operation of the PLRA's automatic stay provision and, if not, whether that provision violates separation of powers principles. I A This litigation began in 1975, when four inmates at what is now the Pendleton Correctional Facility brought a class 332 action under Rev. Stat. § 1979, 42 U.S. C. § 1983, on behalf of all persons who were, or would be, confined at the facility against the predecessors in office of petitioners (hereinafter State). 1 Record, Doc. No. 1, p. 2. After a trial, the District Court found that living conditions at the prison violated both state and federal law, including the Eighth Amendment's prohibition against cruel and unusual punishment, and the court issued an injunction to correct those violations. French v. Owens, 538 F. Supp. 910 (SD Ind. 1982), aff'd in part, vacated and remanded in part, 777 F.2d 1250 (CA7 1985). While the State's appeal was pending, this Court decided Pennhurst State School and Hospital v. Halderman, 465 U.S. 89 (1984), which held that the Eleventh Amendment deprives federal courts of jurisdiction over claims for injunctive relief against state officials based on state law. Accordingly, the Court of Appeals for the Seventh Circuit remanded the action to the District Court for reconsideration. 777 F.2d, at 1251. On remand, the District Court concluded that most of the state law violations also ran afoul of the Eighth Amendment, and it issued an amended remedial order to address those constitutional violations. The order also accounted for improvements in living conditions at the Pendleton facility that had occurred in the interim. Ibid. The Court of Appeals affirmed the amended remedial order as to those aspects governing overcrowding and double celling, the use of mechanical restraints, staffing, and the quality of food and medical services, but it vacated those portions pertaining to exercise and recreation, protective custody, and fire and occupational safety standards. Id., at 1258. This ongoing injunctive relief has remained in effect ever since, with the last modification occurring in October 1988, when the parties resolved by joint stipulation the remaining issues related to fire and occupational safety standards. 1 Record, Doc. No. 14. 333 B In 1996, Congress enacted the PLRA. As relevant here, the PLRA establishes standards for the entry and termination of prospective relief in civil actions challenging conditions at prison facilities. Specifically, a court "shall not grant or approve any prospective relief unless the court finds that such relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right." 18 U.S. C. § 3626(a)(1)(A) (1994 ed., Supp. IV). The same criteria apply to existing injunctions, and a defendant or intervenor may move to terminate prospective relief that does not meet this standard. See § 3626(b)(2). In particular, § 3626(b)(2) provides: "In any civil action with respect to prison conditions, a defendant or intervener shall be entitled to the immediate termination of any prospective relief if the relief was approved or granted in the absence of a finding by the court that the relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right." A court may not terminate prospective relief, however, if it "makes written findings based on the record that prospective relief remains necessary to correct a current and ongoing violation of the Federal right, extends no further than necessary to correct the violation of the Federal right, and that the prospective relief is narrowly drawn and the least intrusive means necessary to correct the violation." § 3626(b)(3). The PLRA also requires courts to rule "promptly" on motions to terminate prospective relief, with mandamus available to remedy a court's failure to do so. § 3626(e)(1). Finally, the provision at issue here, § 3626(e)(2), dictates that, in certain circumstances, prospective relief shall be 334 stayed pending resolution of a motion to terminate. Specifically, subsection (e)(2), entitled "Automatic Stay," states: "Any motion to modify or terminate prospective relief made under subsection (b) shall operate as a stay during the period "(A)(i) beginning on the 30th day after such motion is filed, in the case of a motion made under paragraph (1) or (2) of subsection (b); . . . "(ii) . . .and "(B) ending on the date the court enters a final order ruling on the motion." As one of several 1997 amendments to the PLRA, Congress permitted courts to postpone the entry of the automatic stay for not more than 60 days for "good cause," which cannot include general congestion of the court's docket. § 123, 111 Stat. 2470, codified at 18 U.S. C. § 3626(e)(3).[] C On June 5, 1997, the State filed a motion under § 3626(b) to terminate the prospective relief governing the conditions of confinement at the Pendleton Correctional Facility. 1 Record, Doc. No. 16. In response, the prisoner class moved for a temporary restraining order or preliminary injunction to enjoin the operation of the automatic stay, arguing that § 3626(e)(2) is unconstitutional as both a violation of the Due Process Clause of the Fifth Amendment and separation of powers principles. The District Court granted 335 the prisoners' motion, enjoining the automatic stay. See id., Doc. No. 23; see also French v. Duckworth, 178 F.3d 437, 440-441 (CA7 1999). The State appealed, and the United States intervened pursuant to 28 U.S. C. § 2403(a) to defend the constitutionality of § 3626(e)(2). The Court of Appeals for the Seventh Circuit affirmed the District Court's order, concluding that although § 3626(e)(2) precluded courts from exercising their equitable powers to enjoin operation of the automatic stay, the statute, so construed, was unconstitutional on separation of powers grounds. See 178 F.3d, at 447-448. The court reasoned that Congress drafted § 3626(e)(2) in unequivocal terms, clearly providing that a motion to terminate under § 3626(b)(2) "shall operate" as a stay during a specified time period. Id., at 443. While acknowledging that courts should not lightly assume that Congress meant to restrict the equitable powers of the federal courts, the Court of Appeals found "it impossible to read this language as doing anything less than that." Ibid. Turning to the constitutional question, the court characterized § 3626(e)(2) as "a self-executing legislative determination that a specific decree of a federal court . . . must be set aside at least for a period of time." Id., at 446. As such, it concluded that § 3626(e)(2) directly suspends a court order in violation of the separation of powers doctrine under Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995), and mandates a particular rule of decision, at least during the pendency of the § 3626(b)(2) termination motion, contrary to United States v. Klein, 13 Wall. 128 (1872). See 178 F.3d, at 446. Having concluded that § 3626(e)(2) is unconstitutional on separation of powers grounds, the Court of Appeals did not reach the prisoners' due process claims. Over the dissent of three judges, the court denied rehearing en banc. See id., at 448-453 (Easterbrook, J., dissenting from denial of rehearing en banc). We granted certiorari, 528 U.S. 1045 (1999), to resolve a conflict among the Courts of Appeals as to whether 336 § 3626(e)(2) permits federal courts, in the exercise of their traditional equitable authority, to enjoin operation of the PLRA's automatic stay provision and, if not, to review the Court of Appeals' judgment that § 3626(e)(2), so construed, is unconstitutional. Compare Ruiz v. Johnson, 178 F.3d 385 (CA5 1999) (holding that district courts retain the equitable discretion to suspend the automatic stay and that § 3626(e)(2) is therefore constitutional); Hadix v. Johnson, 144 F.3d 925 (CA6 1998) (same), with 178 F.3d 437 (CA7 1999) (case below). II We address the statutory question first. Both the State and the prisoner class agree, as did the majority and dissenting judges below, that § 3626(e)(2) precludes a district court from exercising its equitable powers to enjoin the automatic stay. The Government argues, however, that § 3626(e)(2) should be construed to leave intact the federal courts' traditional equitable discretion to "stay the stay," invoking two canons of statutory construction. First, the Government contends that we should not interpret a statute as displacing courts' traditional equitable authority to preserve the status quo pending resolution on the merits "[a]bsent the clearest command to the contrary." Califano v. Yamasaki, 442 U.S. 682, 705 (1979). Second, the Government asserts that reading § 3626(e)(2) to remove that equitable power would raise serious separation of powers questions, and therefore should be avoided under the canon of constitutional doubt. Like the Court of Appeals, we do not lightly assume that Congress meant to restrict the equitable powers of the federal courts, and we agree that constitutionally doubtful constructions should be avoided where "fairly possible." Communications Workers v. Beck, 487 U.S. 735, 762 (1988). But where Congress has made its intent clear, "we must give effect to that intent." Sinclair Refining Co. v. Atkinson, 370 U.S. 195, 215 (1962). 337 The text of § 3626(e)(2) provides that "[a]ny motion to . . . terminate prospective relief made under subsection (b) shall operate as a stay " during a fixed period of time, i. e., from 30 (or 90) days after the motion is filed until the court enters a final order ruling on the motion. 18 U.S. C. § 3626(e)(2) (1994 ed., Supp. IV) (emphasis added). The stay is "automatic" once a state defendant has filed a § 3626(b) motion, and the statutory command that such a motion "shall operate as a stay during the [specified time] period" indicates that the stay is mandatory throughout that period of time. See 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"). Nonetheless, the Government contends that reading the statute to preserve courts' traditional equitable powers to enter appropriate injunctive relief is consistent with this text because, in its view, § 3626(e)(2) is simply a burdenshifting mechanism. That is, the purpose of the automatic stay provision is merely to relieve defendants of the burden of establishing the prerequisites for a stay and to eliminate courts' discretion to deny a stay, even if those prerequisites are established, based on the public interest or hardship to the plaintiffs. Thus, under this reading, nothing in § 3626(e)(2) prevents courts from subsequently suspending the automatic stay by applying the traditional standards for injunctive relief. Such an interpretation, however, would subvert the plain meaning of the statute, making its mandatory language merely permissive. Section 3626(e)(2) states that a motion to terminate prospective relief "shall operate as a stay during " the specified time period from 30 (or 90) days after the filing of the § 3626(b) motion until the court rules on that motion. (Emphasis added.) Thus, not only does the statute employ the mandatory term "shall," but it also specifies the points at which the operation of the stay is to begin and end. In other words, contrary to Justice Breyer's suggestion 338 that the language of § 3626(e)(2) "says nothing . . . about the district court's power to modify or suspend the operation of the `stay,' " post, at 358 (dissenting opinion), § 3626(e)(2) unequivocally mandates that the stay "shall operate during " this specific interval. To allow courts to exercise their equitable discretion to prevent the stay from "operating" during this statutorily prescribed period would be to contradict § 3626(e)(2)'s plain terms. It would mean that the motion to terminate merely may operate as a stay, despite the statute's command that it "shall" have such effect. If Congress had intended to accomplish nothing more than to relieve state defendants of the burden of establishing the prerequisites for a stay, the language of § 3626(e)(2) is, at best, an awkward and indirect means to achieve that result. Viewing the automatic stay provision in the context of § 3626 as a whole further confirms that Congress intended to prohibit federal courts from exercising their equitable authority to suspend operation of the automatic stay. The specific appeal provision contained in § 3626(e) states that "[a]ny order staying, suspending, delaying, or barring the operation of the automatic stay" of § 3626(e)(2) "shall be appealable" pursuant to 28 U.S. C. § 1292(a)(1). § 3626(e)(4). At first blush, this provision might be read as supporting the view that Congress expressly recognized the possibility that a district court could exercise its equitable discretion to enjoin the stay. The two Courts of Appeals that have construed § 3626(e)(2) as preserving the federal courts' equitable powers have reached that conclusion based on this reading of § 3626(e)(4). See Ruiz v. Johnson, 178 F. 3d, at 394; Hadix v. Johnson, 144 F. 3d, at 938. They reasoned that Congress would not have provided for expedited review of such orders had it not intended that district courts would retain the power to enter the orders in the first place. See ibid. In other words, "Congress understood that there would be some cases in which a conscientious district court acting in good faith would perceive that equity required that it suspend" 339 the § 3626(e)(2) stay, and "Congress therefore permitted the district court to do so, subject to appellate review." Ruiz v. Johnson, supra, at 394. The critical flaw in this construction, however, is that § 3626(e)(4) only provides for an appeal from an order preventing the operation of the automatic stay. § 3626(e)(4) ("Any order staying, suspending, delaying, or barring the operation of the automatic stay" under § 3626(e)(2) "shall be appealable"). If the rationale for the provision were that in some situations equity demands that the automatic stay be suspended, then presumably the denial of a motion to enjoin the stay should also be appealable. The one-way nature of the appeal provision only makes sense if the automatic stay is required to operate during a specific time period, such that any attempt by a district court to circumvent the mandatory stay is immediately reviewable. The Government contends that if Congress' goal were to prevent courts from circumventing the PLRA's plain commands, mandamus would have been a more appropriate remedy than appellate review. But that proposition is doubtful, as mandamus is an extraordinary remedy that is "granted only in the exercise of sound discretion." Whitehouse v. Illinois Central R. Co., 349 U.S. 366, 373 (1955). Given that curbing the equitable discretion of district courts was one of the PLRA's principal objectives, it would have been odd for Congress to have left enforcement of § 3626(e)(2) to that very same discretion. Instead, Congress sensibly chose to make available an immediate appeal to resolve situations in which courts mistakenly believeunder the novel scheme created by the PLRAthat they have the authority to enjoin the automatic stay, rather than the extraordinary remedy of mandamus, which requires a showing of a "clear and indisputable" right to the issuance of the writ. See Mallard v. United States Dist. Court for Southern Dist. of Iowa, 490 U.S. 296, 309 (1989). In any event, § 3626(e) as originally enacted did not provide for interlocutory review. It was 340 only after some courts refused to enter the automatic stay, and after the Court of Appeals for the Fifth Circuit would not review such a refusal, that Congress amended § 3626(e) to provide for interlocutory review. See In re Scott, 163 F.3d 282, 284 (CA5 1998); Ruiz v. Johnson, supra, at 388; see also 18 U.S. C. § 3626(e)(4) (1994 ed., Supp. IV). Finally, the Government finds support for its view in § 3626(e)(3). That provision authorizes an extension, for "good cause," of the starting point for the automatic stay, from 30 days after the § 3626(b) motion is filed until 90 days after that motion is filed. The Government explains that, by allowing the court to prevent the entry of the stay for up to 60 days under the relatively generous "good cause" standard, Congress by negative implication has preserved courts' discretion to suspend the stay after that time under the more stringent standard for injunctive relief. To be sure, allowing a delay in entry of the stay for 60 days based on a good cause standard does not by itself necessarily imply that any other reason for preventing the operation of the stayfor example, on the basis of traditional equitable principlesis precluded. But § 3626(e)(3) cannot be read in isolation. When §§ 3626(e)(2) and (3) are read together, it is clear that the district court cannot enjoin the operation of the automatic stay. The § 3626(b) motion "shall operate as a stay during" a specific time period. Section 3626(e)(3) only adjusts the starting point for the stay, and it merely permits that starting point to be delayed. Once the 90-day period has passed, the § 3626(b) motion "shall operate as a stay" until the court rules on the § 3626(b) motion. During that time, any attempt to enjoin the stay is irreconcilable with the plain language of the statute. Thus, although we should not construe a statute to displace courts' traditional equitable authority absent the "clearest command," Califano v. Yamasaki, 442 U. S., at 705, or an "inescapable inference" to the contrary, Porter v. Warner Holding Co., 328 U.S. 395, 398 (1946), we are convinced 341 that Congress' intent to remove such discretion is unmistakable in § 3626(e)(2). And while this construction raises constitutional questions, the canon of constitutional doubt permits us to avoid such questions only where the saving construction is not "plainly contrary to the intent of Congress." Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U.S. 568, 575 (1988). "We cannot press statutory construction `to the point of disingenuous evasion' even to avoid a constitutional question." United States v. Locke, 471 U.S. 84, 96 (1985) (quoting George Moore Ice Cream Co. v. Rose, 289 U.S. 373, 379 (1933)); see also Pennsylvania Dept. of Corrections v. Yeskey, 524 U.S. 206, 212 (1998) (constitutional doubt canon does not apply where the statute is unambiguous); Commodity Futures Trading Comm'n v. Schor, 478 U.S. 833, 841 (1986) (constitutional doubt canon "does not give a court the prerogative to ignore the legislative will"). Like the Court of Appeals, we find that § 3626(e)(2) is unambiguous, and accordingly, we cannot adopt Justice Breyer's "more flexible interpretation" of the statute. Post, at 355. Any construction that preserved courts' equitable discretion to enjoin the automatic stay would effectively convert the PLRA's mandatory stay into a discretionary one. Because this would be plainly contrary to Congress' intent in enacting the stay provision, we must confront the constitutional issue. III The Constitution enumerates and separates the powers of the three branches of Government in Articles I, II, and III, and it is this "very structure" of the Constitution that exemplifies the concept of separation of powers. INS v. Chadha, 462 U.S. 919, 946 (1983). While the boundaries between the three branches are not "`hermetically' sealed," see id., at 951, the Constitution prohibits one branch from encroaching on the central prerogatives of another, see Loving v. United States, 517 U.S. 748, 757 (1996); Buckley v. 342 Valeo, 424 U.S. 1, 121-122 (1976) (per curiam). The powers of the Judicial Branch are set forth in Article III, § 1, which states that the "judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish," and provides that these federal courts shall be staffed by judges who hold office during good behavior, and whose compensation shall not be diminished during tenure in office. As we explained in Plaut v. Spendthrift Farm, Inc., 514 U. S., at 218-219, Article III "gives the Federal Judiciary the power, not merely to rule on cases, but to decide them, subject to review only by superior courts in the Article III hierarchy." Respondent prisoners contend that § 3626(e)(2) encroaches on the central prerogatives of the Judiciary and thereby violates the separation of powers doctrine. It does this, the prisoners assert, by legislatively suspending a final judgment of an Article III court in violation of Plaut and Hayburn's Case, 2 Dall. 409 (1792). According to the prisoners, the remedial order governing living conditions at the Pendleton Correctional Facility is a final judgment of an Article III court, and § 3626(e)(2) constitutes an impermissible usurpation of judicial power because it commands the district court to suspend prospective relief under that order, albeit temporarily. An analysis of the principles underlying Hayburn's Case and Plaut, as well as an examination of § 3626(e)(2)'s interaction with the other provisions of § 3626, makes clear that § 3626(e)(2) does not offend these separation of powers principles. Hayburn's Case arose out of a 1792 statute that authorized pensions for veterans of the Revolutionary War. See Act of Mar. 23, 1792, ch. 11, 1 Stat. 243. The statute provided that the circuit courts were to review the applications and determine the appropriate amount of the pension, but that the Secretary of War had the discretion either to adopt or reject the courts' findings. Hayburn's Case, supra, at 408-410. 343 Although this Court did not reach the constitutional issue in Hayburn's Case, the statements of five Justices, acting as circuit judges, were reported, and we have since recognized that the case "stands for the principle that Congress cannot vest review of the decisions of Article III courts in officials of the Executive Branch." Plaut, supra, at 218; see also Morrison v. Olson, 487 U.S. 654, 677, n. 15 (1988). As we recognized in Plaut, such an effort by a coequal branch to "annul a final judgment" is "`an assumption of Judicial power' and therefore forbidden." 514 U.S., at 224 (quoting Bates v. Kimball, 2 Chipman 77 (Vt. 1824)). Unlike the situation in Hayburn's Case, § 3626(e)(2) does not involve the direct review of a judicial decision by officials of the Legislative or Executive Branches. Nonetheless, the prisoners suggest that § 3626(e)(2) falls within Hayburn's prohibition against an indirect legislative "suspension" or reopening of a final judgment, such as that addressed in Plaut. See Plaut, supra, at 226 (quoting Hayburn's Case, supra, at 413 (letter of Iredell, J., and Sitgreaves, D. J.) ("`[N]o decision of any court of the United States can, under any circumstances, . . . be liable to a revision, or even suspension, by the [l]egislature itself, in whom no judicial power of any kind appears to be vested' ")). In Plaut, we held that a federal statute that required federal courts to reopen final judgments that had been entered before the statute's enactment was unconstitutional on separation of powers grounds. 514 U.S., at 211. The plaintiffs had brought a civil securities fraud action seeking money damages. Id., at 213. While that action was pending, we ruled in Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350 (1991), that such suits must be commenced within one year after the discovery of the facts constituting the violation and within three years after such violation. In light of this intervening decision, the Plaut plaintiffs' suit was untimely, and the District Court accordingly dismissed the action as time barred. Plaut, supra, at 214. After the judgment dismissing the 344 case had become final, Congress enacted a statute providing for the reinstatement of those actions, including the Plaut plaintiffs', that had been dismissed under Lampf but that would have been timely under the previously applicable statute of limitations. 514 U.S., at 215. We concluded that this retroactive command that federal courts reopen final judgments exceeded Congress' authority. Id., at 218-219. The decision of an inferior court within the Article III hierarchy is not the final word of the department (unless the time for appeal has expired), and "[i]t is the obligation of the last court in the hierarchy that rules on the case to give effect to Congress's latest enactment, even when that has the effect of overturning the judgment of an inferior court, since each court, at every level, must `decide according to existing laws.' " Id., at 227 (quoting United States v. Schooner Peggy, 1 Cranch 103, 109 (1801)). But once a judicial decision achieves finality, it "becomes the last word of the judicial department." 514 U.S., at 227. And because Article III "gives the Federal Judiciary the power, not merely to rule on cases, but to decide them, subject to review only by superior courts in the Article III hierarchy," id., at 218-219, the "judicial Power is one to render dispositive judgments," and Congress cannot retroactively command Article III courts to reopen final judgments, id., at 219 (quoting Easterbrook, Presidential Review, 40 Case W. Res. L. Rev. 905, 926 (1990) (internal quotation marks omitted)). Plaut, however, was careful to distinguish the situation before the Court in that caselegislation that attempted to reopen the dismissal of a suit seeking money damagesfrom legislation that "altered the prospective effect of injunctions entered by Article III courts." 514 U.S., at 232. We emphasized that "nothing in our holding today calls . . . into question" Congress' authority to alter the prospective effect of previously entered injunctions. Ibid. Prospective relief under a continuing, executory decree remains subject to alteration due to changes in the underlying law. Cf. Land- 345 graf v. USI Film Products, 511 U.S. 244, 273 (1994) ("When the intervening statute authorizes or affects the propriety of prospective relief, application of the new provision is not retroactive"). This conclusion follows from our decisions in Pennsylvania v. Wheeling & Belmont Bridge Co., 13 How. 518 (1852) (Wheeling Bridge I), and Pennsylvania v. Wheeling & Belmont Bridge Co., 18 How. 421 (1856) (Wheeling Bridge II). In Wheeling Bridge I, we held that a bridge across the Ohio River, because it was too low, unlawfully "obstruct[ed] the navigation of the Ohio," and ordered that the bridge be raised or permanently removed. 13 How., at 578. Shortly thereafter, Congress enacted legislation declaring the bridge to be a "lawful structur[e]," establishing the bridge as a "`post-roa[d] for the passage of the mails of the United States,' " and declaring that the Wheeling and Belmont Bridge Company was authorized to maintain the bridge at its then-current site and elevation. Wheeling Bridge II, supra, at 429. After the bridge was destroyed in a storm, Pennsylvania sued to enjoin the bridge's reconstruction, arguing that the statute legalizing the bridge was unconstitutional because it effectively annulled the Court's decision in Wheeling Bridge I. We rejected that argument, concluding that the decree in Wheeling Bridge I provided for ongoing relief by "directing the abatement of the obstruction" which enjoined the defendants' from any continuance or reconstruction of the obstruction. Because the intervening statute altered the underlying law such that the bridge was no longer an unlawful obstruction, we held that it was "quite plain the decree of the court cannot be enforced." Wheeling Bridge II, supra, at 431-432. The Court explained that had Wheeling Bridge I awarded money damages in an action at law, then that judgment would be final, and Congress' later action could not have affected plaintiff's right to those damages. See 18 How., at 431. But because the decree entered in Wheeling Bridge I provided for prospective 346 reliefa continuing injunction against the continuation or reconstruction of the bridgethe ongoing validity of the injunctive relief depended on "whether or not [the bridge] interferes with the right of navigation." 18 How., at 431. When Congress altered the underlying law such that the bridge was no longer an unlawful obstruction, the injunction against the maintenance of the bridge was not enforceable. See id., at 432. Applied here, the principles of Wheeling Bridge II demonstrate that the automatic stay of § 3626(e)(2) does not unconstitutionally "suspend" or reopen a judgment of an Article III court. Section 3626(e)(2) does not by itself "tell judges when, how, or what to do." 178 F.3d, at 449 (Easterbrook, J., dissenting from denial of rehearing en banc). Instead, § 3626(e)(2) merely reflects the change implemented by § 3626(b), which does the "heavy lifting" in the statutory scheme by establishing new standards for prospective relief. See Berwanger v. Cottey, 178 F.3d 834, 839 (CA7 1999). Section 3626 prohibits the continuation of prospective relief that was "approved or granted in the absence of a finding by the court that the relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means to correct the violation," § 3626(b)(2), or in the absence of "findings based on the record that prospective relief remains necessary to correct a current and ongoing violation of a Federal right, extends no further than necessary to correct the violation of the Federal right, and that the prospective relief is narrowly drawn and the least intrusive means to correct the violation," § 3626(b)(3). Accordingly, if prospective relief under an existing decree had been granted or approved absent such findings, then that prospective relief must cease, see § 3626(b)(2), unless and until the court makes findings on the record that such relief remains necessary to correct an ongoing violation and is narrowly tailored, see § 3626(b)(3). The PLRA's automatic stay provision assists in the enforcement 347 of §§ 3626(b)(2) and (3) by requiring the court to stay any prospective relief that, due to the change in the underlying standard, is no longer enforceable, i. e., prospective relief that is not supported by the findings specified in §§ 3626(b)(2) and (3). By establishing new standards for the enforcement of prospective relief in § 3626(b), Congress has altered the relevant underlying law. The PLRA has restricted courts' authority to issue and enforce prospective relief concerning prison conditions, requiring that such relief be supported by findings and precisely tailored to what is needed to remedy the violation of a federal right. See Benjamin v. Jacobson, 172 F.3d 144, 163 (CA2 1999) (en banc); Imprisoned Citizens Union v. Ridge, 169 F.3d 178, 184-185 (CA3 1999); Tyler v. Murphy, 135 F.3d 594, 597 (CA8 1998); Inmates of Suffolk County Jail v. Rouse, 129 F.3d 649, 657 (CA1 1997). We note that the constitutionality of § 3626(b) is not challenged here; we assume, without deciding, that the new standards it pronounces are effective. As Plaut and Wheeling Bridge II instruct, when Congress changes the law underlying a judgment awarding prospective relief, that relief is no longer enforceable to the extent it is inconsistent with the new law. Although the remedial injunction here is a "final judgment" for purposes of appeal, it is not the "last word of the judicial department." Plaut, 514 U. S., at 227. The provision of prospective relief is subject to the continuing supervisory jurisdiction of the court, and therefore may be altered according to subsequent changes in the law. See Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 388 (1992). Prospective relief must be "modified if, as it later turns out, one or more of the obligations placed upon the parties has become impermissible under federal law." Ibid.; see also Railway Employees v. Wright, 364 U.S. 642, 646-647 (1961) (a court has the authority to alter the prospective effect of an injunction to reflect a change in circumstances, whether of law or fact, that has occurred since the injunction was 348 entered); Lauf v. E. G. Shinner & Co., 303 U.S. 323, 329 (1938) (applying the Norris-LaGuardia Act's prohibition on a district court's entry of injunctive relief in the absence of findings). The entry of the automatic stay under § 3626(e)(2) helps to implement the change in the law caused by §§ 3626(b)(2) and (3). If the prospective relief under the existing decree is not supported by the findings required under § 3626(b)(2), and the court has not made the findings required by § 3626(b)(3), then prospective relief is no longer enforceable and must be stayed. The entry of the stay does not reopen or "suspend" the previous judgment, nor does it divest the court of authority to decide the merits of the termination motion. Rather, the stay merely reflects the changed legal circumstancesthat prospective relief under the existing decree is no longer enforceable, and remains unenforceable unless and until the court makes the findings required by § 3626(b)(3). For the same reasons, § 3626(e)(2) does not violate the separation of powers principle articulated in United States v. Klein, 13 Wall. 128 (1872). In that case, Klein, the executor of the estate of a Confederate sympathizer, sought to recover the value of property seized by the United States during the Civil War, which by statute was recoverable if Klein could demonstrate that the decedent had not given aid or comfort to the rebellion. See id., at 131. In United States v. Padelford, 9 Wall. 531, 542-543 (1870), we held that a Presidential pardon satisfied the burden of proving that no such aid or comfort had been given. While Klein's case was pending, Congress enacted a statute providing that a pardon would instead be taken as proof that the pardoned individual had in fact aided the enemy, and if the claimant offered proof of a pardon the court must dismiss the case for lack of jurisdiction. Klein, 13 Wall., at 133-134. We concluded that the statute was unconstitutional because it purported to "prescribe 349 rules of decision to the Judicial Department of the government in cases pending before it." Id., at 146. Here, the prisoners argue that Congress has similarly prescribed a rule of decision because, for the period of time until the district court makes a final decision on the merits of the motion to terminate prospective relief, § 3626(e)(2) mandates a particular outcome: the termination of prospective relief. As we noted in Plaut, however, "[w]hatever the precise scope of Klein, . . . later decisions have made clear that its prohibition does not take hold when Congress `amend[s] applicable law.' " 514 U.S., at 218 (quoting Robertson v. Seattle Audubon Soc., 503 U.S. 429, 441 (1992)). The prisoners concede this point but contend that, because § 3626(e)(2) does not itself amend the legal standard, Klein is still applicable. As we have explained, however, § 3626(e)(2) must be read not in isolation, but in the context of § 3626 as a whole. Section 3626(e)(2) operates in conjunction with the new standards for the continuation of prospective relief; if the new standards of § 3626(b)(2) are not met, then the stay "shall operate" unless and until the court makes the findings required by § 3626(b)(3). Rather than prescribing a rule of decision, § 3626(e)(2) simply imposes the consequences of the court's application of the new legal standard. Finally, the prisoners assert that, even if § 3626(e)(2) does not fall within the recognized prohibitions of Hayburn's Case, Plaut, or Klein, it still offends the principles of separation of powers because it places a deadline on judicial decisionmaking, thereby interfering with core judicial functions. Congress' imposition of a time limit in § 3626(e)(2), however, does not in itself offend the structural concerns underlying the Constitution's separation of powers. For example, if the PLRA granted courts 10 years to determine whether they could make the required findings, then certainly the PLRA would raise no apprehensions that Congress had encroached on the core function of the Judiciary to decide "cases and controversies properly before them." United 350 States v. Raines, 362 U.S. 17, 20 (1960). Respondents' concern with the time limit, then, must be its relative brevity. But whether the time is so short that it deprives litigants of a meaningful opportunity to be heard is a due process question, an issue that is not before us. We leave open, therefore, the question whether this time limit, particularly in a complex case, may implicate due process concerns. In contrast to due process, which principally serves to protect the personal rights of litigants to a full and fair hearing, separation of powers principles are primarily addressed to the structural concerns of protecting the role of the independent Judiciary within the constitutional design. In this action, we have no occasion to decide whether there could be a time constraint on judicial action that was so severe that it implicated these structural separation of powers concerns. The PLRA does not deprive courts of their adjudicatory role, but merely provides a new legal standard for relief and encourages courts to apply that standard promptly. Through the PLRA, Congress clearly intended to make operation of the automatic stay mandatory, precluding courts from exercising their equitable powers to enjoin the stay. And we conclude that this provision does not violate separation of powers principles. Accordingly, the judgment of the Court of Appeals for the Seventh Circuit is reversed, and the action is remanded for further proceedings consistent with this opinion. It is so ordered. Justice Souter, with whom Justice Ginsburg joins, concurring in part and dissenting in part. I agree that 18 U.S. C. § 3626(e)(2) (1994 ed., Supp. IV) is unambiguous and join Parts I and II of the majority opinion. I also agree that applying the automatic stay may raise the due process issue, of whether a plaintiff has a fair chance to preserve an existing judgment that was valid when entered. Ante this page. But I believe that applying the statute may 351 also raise a serious separation-of-powers issue if the time it allows turns out to be inadequate for a court to determine whether the new prerequisite to relief is satisfied in a particular case.[1] I thus do not join Part III of the Court's opinion and on remand would require proceedings consistent with this one. I respectfully dissent from the terms of the Court's disposition. A prospective remedial order may rest on at least three different legal premises: the underlying right meant to be secured; the rules of procedure for obtaining relief, defining requisites of pleading, notice, and so on; and, in some cases, rules lying between the other two, such as those defining a required level of certainty before some remedy may be ordered, or the permissible scope of relief. At issue here are rules of the last variety.[2] Congress has the authority to change rules of this sort by imposing new conditions precedent for the continuing enforcement of existing, prospective remedial orders and requiring courts to apply the new rules to those orders. Cf. Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 232 (1995). If its legislation gives courts adequate time to determine the applicability of a new rule to an old order and to take the action necessary to apply it or to vacate the order, there seems little basis for claiming that Congress has crossed 352 the constitutional line to interfere with the performance of any judicial function. But if determining whether a new rule applies requires time (say, for new factfinding) and if the statute provides insufficient time for a court to make that determination before the statute invalidates an extant remedial order, the application of the statute raises a serious question whether Congress has in practical terms assumed the judicial function. In such a case, the prospective order suddenly turns unenforceable not because a court has made a judgment to terminate it due to changed law or fact, but because no one can tell in the time allowed whether the new rule requires modification of the old order. One way to view this result is to see the Congress as mandating modification of an order that may turn out to be perfectly enforceable under the new rule, depending on judicial factfinding. If the facts are taken this way, the new statute might well be treated as usurping the judicial function of determining the applicability of a general rule in particular factual circumstances.[3] Cf. United States v. Klein, 13 Wall. 128, 146 (1872). Whether this constitutional issue arises on the facts of this action, however, is something we cannot yet tell, for the *353 District Court did not address the sufficiency of the time provided by the statute to make the findings required by § 3626(b)(3) in this particular action.[4] Absent that determination, I would not decide the separation-of-powers question, but simply remand for further proceedings. If the District Court determined both that it lacked adequate time to make the requisite findings in the period before the automatic stay would become effective, and that applying the stay would violate the separation of powers, the question would then be properly presented.	The Prison Litigation Reform Act of 1995 (PLRA) establishes standards for the entry and termination of prospective relief in civil actions challenging prison conditions. 801-810, -66 to 1321-77. If prospective relief under an existing injunction does not satisfy these standards, a defendant or intervenor is entitled to "immediate termination" of that relief. 18 U.S. C. 3626(b)(2) (1994 ed., Supp. IV). And under the PLRA's "automatic stay" provision, a motion to terminate prospective relief "shall operate as a stay" of that relief during the period beginning 30 days after the filing of the motion (extendable to up to 90 days for "good cause") and ending when the court rules on the motion. 3626(e)(2), (3). The superintendent of Indiana's Pendleton Correctional Facility, which is currently operating under an ongoing injunction to remedy violations of the Eighth Amendment regarding conditions of confinement, filed a motion to terminate prospective relief under the PLRA. Respondent prisoners moved to enjoin the operation of the automatic stay provision of 3626(e)(2), arguing that it is unconstitutional. The District Court enjoined the stay, and the Court of Appeals for the Seventh Circuit affirmed. We must decide whether a district court may enjoin the operation of the PLRA's automatic stay provision and, if not, whether that provision violates separation of principles. I A This litigation began in 1975, when four inmates at what is now the Pendleton Correctional Facility brought a class 332 action under Rev. Stat. 1979, 42 U.S. C. 1983, on behalf of all persons who were, or would be, confined at the facility against the predecessors in office of petitioners (hereinafter State). 1 Record, Doc. No. 1, p. 2. After a trial, the District Court found that living conditions at the prison violated both state and federal law, including the Eighth Amendment's prohibition against cruel and unusual punishment, and the court issued an injunction to correct those violations. aff'd in part, vacated and remanded in part, While the State's appeal was pending, this Court decided Pennhurst State School and which held that the Eleventh Amendment deprives federal courts of jurisdiction over claims for injunctive relief against state officials based on state law. Accordingly, the Court of Appeals for the Seventh Circuit remanded the action to the District Court for On remand, the District Court concluded that most of the state law violations also ran afoul of the Eighth Amendment, and it issued an amended remedial order to address those constitutional violations. The order also accounted for improvements in living conditions at the Pendleton facility that had occurred in the interim. The Court of Appeals affirmed the amended remedial order as to those aspects governing overcrowding and double celling, the use of mechanical restraints, staffing, and the quality of food and medical services, but it vacated those portions pertaining to exercise and recreation, protective custody, and fire and occupational safety standards. This ongoing injunctive relief has remained in effect ever since, with the last modification occurring in October 1988, when the parties resolved by joint stipulation the remaining issues related to fire and occupational safety standards. 1 Record, Doc. No. 14. 333 B In 19, Congress enacted the PLRA. As relevant here, the PLRA establishes standards for the entry and termination of prospective relief in civil actions challenging conditions at prison facilities. Specifically, a court "shall not grant or approve any prospective relief unless the court finds that such relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right." 18 U.S. C. 3626(a)(1)(A) (1994 ed., Supp. IV). The same criteria apply to existing injunctions, and a defendant or intervenor may move to terminate prospective relief that does not meet this standard. See 3626(b)(2). In particular, 3626(b)(2) provides: "In any civil action with respect to prison conditions, a defendant or intervener shall be entitled to the immediate termination of any prospective relief if the relief was approved or granted in the absence of a finding by the court that the relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right." A court may not terminate prospective relief, however, if it "makes written findings based on the record that prospective relief remains necessary to correct a current and ongoing violation of the Federal right, extends no further than necessary to correct the violation of the Federal right, and that the prospective relief is narrowly drawn and the least intrusive means necessary to correct the violation." 3626(b)(3). The PLRA also requires courts to rule "promptly" on motions to terminate prospective relief, with mandamus available to remedy a court's failure to do so. 3626(e)(1). Finally, the provision at issue here, 3626(e)(2), dictates that, in certain circumstances, prospective relief shall be 334 stayed pending resolution of a motion to terminate. Specifically, subsection (e)(2), entitled "Automatic Stay," states: "Any motion to modify or terminate prospective relief made under subsection (b) shall operate as a stay during the period "(A)(i) beginning on the 30th day after such motion is filed, in the case of a motion made under paragraph (1) or (2) of subsection (b); "(ii)and "(B) ending on the date the court enters a final order ruling on the motion." As one of several amendments to the PLRA, Congress permitted courts to postpone the entry of the automatic stay for not more than 60 days for "good cause," which cannot include general congestion of the court's docket. 123, codified at 18 U.S. C. 3626(e)(3).[] C On June 5, the State filed a motion under 3626(b) to terminate the prospective relief governing the conditions of confinement at the Pendleton Correctional Facility. 1 Record, Doc. No. 16. In response, the prisoner class moved for a temporary restraining order or preliminary injunction to enjoin the operation of the automatic stay, arguing that 3626(e)(2) is unconstitutional as both a violation of the Due Process Clause of the Fifth Amendment and separation of principles. The District Court granted 3 the prisoners' motion, enjoining the automatic stay. See Doc. No. 23; see also The State appealed, and the United States intervened pursuant to 28 U.S. C. 2403(a) to defend the constitutionality of 3626(e)(2). The Court of Appeals for the Seventh Circuit affirmed the District Court's order, concluding that although 3626(e)(2) precluded courts from exercising their equitable to enjoin operation of the automatic stay, the statute, so construed, was unconstitutional on separation of grounds. See -448. The court reasoned that Congress drafted 3626(e)(2) in unequivocal terms, clearly providing that a motion to terminate under 3626(b)(2) "shall operate" as a stay during a specified time period. While acknowledging that courts should not lightly assume that Congress meant to restrict the equitable of the federal courts, the Court of Appeals found "it impossible to read this language as doing anything less than that." Turning to the constitutional question, the court characterized 3626(e)(2) as "a self-executing legislative determination that a specific decree of a federal court must be set aside at least for a period of time." As such, it concluded that 3626(e)(2) directly suspends a court order in violation of the separation of doctrine under and mandates a particular rule of decision, at least during the pendency of the 3626(b)(2) termination motion, contrary to United See 178 F.3d, Having concluded that 3626(e)(2) is unconstitutional on separation of grounds, the Court of Appeals did not reach the prisoners' due process claims. Over the dissent of three judges, the court denied rehearing en banc. See We granted certiorari, to resolve a conflict among the Courts of Appeals as to whether 336 3626(e)(2) permits federal courts, in the exercise of their traditional equitable authority, to enjoin operation of the PLRA's automatic stay provision and, if not, to review the Court of Appeals' judgment that 3626(e)(2), so construed, is unconstitutional. Compare (holding that district courts retain the equitable discretion to suspend the automatic stay and that 3626(e)(2) is therefore constitutional); with II We address the statutory question first. Both the State and the prisoner class agree, as did the majority and dissenting judges below, that 3626(e)(2) precludes a district court from exercising its equitable to enjoin the automatic stay. The Government argues, however, that 3626(e)(2) should be construed to leave intact the federal courts' traditional equitable discretion to "stay the stay," invoking two canons of statutory construction. First, the Government contends that we should not interpret a statute as displacing courts' traditional equitable authority to preserve the status quo pending resolution on the merits "[a]bsent the clearest command to the contrary." Second, the Government asserts that reading 3626(e)(2) to remove that equitable power would raise serious separation of questions, and therefore should be avoided under the canon of constitutional doubt. Like the Court of Appeals, we do not lightly assume that Congress meant to restrict the equitable of the federal courts, and we agree that constitutionally doubtful constructions should be avoided where "fairly possible." Communications But where Congress has made its intent clear, "we must give effect to that intent." Sinclair Refining 337 The text of 3626(e)(2) provides that "[a]ny motion to terminate prospective relief made under subsection (b) shall operate as a stay " during a fixed period of time, i. e., from 30 (or 90) days after the motion is filed until the court enters a final order ruling on the motion. 18 U.S. C. 3626(e)(2) (1994 ed., Supp. IV) (emphasis added). The stay is "automatic" once a state defendant has filed a 3626(b) motion, and the statutory command that such a motion "shall operate as a stay during the [specified time] period" indicates that the stay is mandatory throughout that period of time. See Lexecon Nonetheless, the Government contends that reading the statute to preserve courts' traditional equitable to enter appropriate injunctive relief is consistent with this text because, in its view, 3626(e)(2) is simply a burdenshifting mechanism. That is, the purpose of the automatic stay provision is merely to relieve defendants of the burden of establishing the prerequisites for a stay and to eliminate courts' discretion to deny a stay, even if those prerequisites are established, based on the public interest or hardship to the plaintiffs. Thus, under this reading, nothing in 3626(e)(2) prevents courts from subsequently suspending the automatic stay by applying the traditional standards for injunctive relief. Such an interpretation, however, would subvert the plain meaning of the statute, making its mandatory language merely permissive. Section 3626(e)(2) states that a motion to terminate prospective relief "shall operate as a stay during " the specified time period from 30 (or 90) days after the filing of the 3626(b) motion until the court rules on that motion. (Emphasis added.) Thus, not only does the statute employ the mandatory term "shall," but it also specifies the points at which the operation of the stay is to begin and end. In other words, contrary to Justice Breyer's suggestion 338 that the language of 3626(e)(2) "says nothing about the district court's power to modify or suspend the operation of the `stay,' " post, at 8 (dissenting opinion), 3626(e)(2) unequivocally mandates that the stay "shall operate during " this specific interval. To allow courts to exercise their equitable discretion to prevent the stay from "operating" during this statutorily prescribed period would be to contradict 3626(e)(2)'s plain terms. It would mean that the motion to terminate merely may operate as a stay, despite the statute's command that it "shall" have such effect. If Congress had intended to accomplish nothing more than to relieve state defendants of the burden of establishing the prerequisites for a stay, the language of 3626(e)(2) is, at best, an awkward and indirect means to achieve that result. Viewing the automatic stay provision in the context of 3626 as a whole further confirms that Congress intended to prohibit federal courts from exercising their equitable authority to suspend operation of the automatic stay. The specific appeal provision contained in 3626(e) states that "[a]ny order staying, suspending, delaying, or barring the operation of the automatic stay" of 3626(e)(2) "shall be appealable" pursuant to 28 U.S. C. 1292(a)(1). 3626(e)(4). At first blush, this provision might be read as supporting the view that Congress expressly recognized the possibility that a district court could exercise its equitable discretion to enjoin the stay. The two Courts of Appeals that have construed 3626(e)(2) as preserving the federal courts' equitable have reached that conclusion based on this reading of 3626(e)(4). See ; They reasoned that Congress would not have provided for expedited review of such orders had it not intended that district courts would retain the power to enter the orders in the first place. See In other words, "Congress understood that there would be some cases in which a conscientious district court acting in good faith would perceive that equity required that it suspend" 339 the 3626(e)(2) stay, and "Congress therefore permitted the district court to do so, subject to appellate review." The critical flaw in this construction, however, is that 3626(e)(4) only provides for an appeal from an order preventing the operation of the automatic stay. 3626(e)(4) ("Any order staying, suspending, delaying, or barring the operation of the automatic stay" under 3626(e)(2) "shall be appealable"). If the rationale for the provision were that in some situations equity demands that the automatic stay be suspended, then presumably the denial of a motion to enjoin the stay should also be appealable. The one-way nature of the appeal provision only makes sense if the automatic stay is required to operate during a specific time period, such that any attempt by a district court to circumvent the mandatory stay is immediately reviewable. The Government contends that if Congress' goal were to prevent courts from circumventing the PLRA's plain commands, mandamus would have been a more appropriate remedy than appellate review. But that proposition is doubtful, as mandamus is an extraordinary remedy that is "granted only in the exercise of sound discretion." Given that curbing the equitable discretion of district courts was one of the PLRA's principal objectives, it would have been odd for Congress to have left enforcement of 3626(e)(2) to that very same discretion. Instead, Congress sensibly chose to make available an immediate appeal to resolve situations in which courts mistakenly believeunder the novel scheme created by the PLRAthat they have the authority to enjoin the automatic stay, rather than the extraordinary remedy of mandamus, which requires a showing of a "clear and indisputable" right to the issuance of the writ. See In any event, 3626(e) as originally enacted did not provide for interlocutory review. It was 340 only after some courts refused to enter the automatic stay, and after the Court of Appeals for the Fifth Circuit would not review such a refusal, that Congress amended 3626(e) to provide for interlocutory review. See In re Scott, ; ; see also 18 U.S. C. 3626(e)(4) (1994 ed., Supp. IV). Finally, the Government finds support for its view in 3626(e)(3). That provision authorizes an extension, for "good cause," of the starting point for the automatic stay, from 30 days after the 3626(b) motion is filed until 90 days after that motion is filed. The Government explains that, by allowing the court to prevent the entry of the stay for up to 60 days under the relatively generous "good cause" standard, Congress by negative implication has preserved courts' discretion to suspend the stay after that time under the more stringent standard for injunctive relief. To be sure, allowing a delay in entry of the stay for 60 days based on a good cause standard does not by itself necessarily imply that any other reason for preventing the operation of the stayfor example, on the basis of traditional equitable principlesis precluded. But 3626(e)(3) cannot be read in isolation. When 3626(e)(2) and (3) are read together, it is clear that the district court cannot enjoin the operation of the automatic stay. The 3626(b) motion "shall operate as a stay during" a specific time period. Section 3626(e)(3) only adjusts the starting point for the stay, and it merely permits that starting point to be delayed. Once the 90-day period has passed, the 3626(b) motion "shall operate as a stay" until the court rules on the 3626(b) motion. During that time, any attempt to enjoin the stay is irreconcilable with the plain language of the statute. Thus, although we should not construe a statute to displace courts' traditional equitable authority absent the "clearest command," 442 U. S., at or an "inescapable inference" to the contrary, we are convinced 341 that Congress' intent to remove such discretion is unmistakable in 3626(e)(2). And while this construction raises constitutional questions, the canon of constitutional doubt permits us to avoid such questions only where the saving construction is not "plainly contrary to the intent of Congress." Edward J. DeBartolo "We cannot press statutory construction `to the point of disingenuous evasion' even to avoid a constitutional question." United ); see also Pennsylvania Dept. of ; Commodity Futures Trading Like the Court of Appeals, we find that 3626(e)(2) is unambiguous, and accordingly, we cannot adopt Justice Breyer's "more flexible interpretation" of the statute. Post, at 5. Any construction that preserved courts' equitable discretion to enjoin the automatic stay would effectively convert the PLRA's mandatory stay into a discretionary one. Because this would be plainly contrary to Congress' intent in enacting the stay provision, we must confront the constitutional issue. III The Constitution enumerates and separates the of the three branches of Government in Articles I, II, and III, and it is this "very structure" of the Constitution that exemplifies the concept of separation of While the boundaries between the three branches are not "`hermetically' sealed," see the Constitution prohibits one branch from encroaching on the central prerogatives of another, see (19); The of the Judicial Branch are set forth in Article III, 1, which states that the "judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish," and provides that these federal courts shall be staffed by judges who hold office during good behavior, and whose compensation shall not be diminished during tenure in office. As we explained in -219, Article III "gives the Federal Judiciary the power, not merely to rule on cases, but to decide them, subject to review only by superior courts in the Article III hierarchy." Respondent prisoners contend that 3626(e)(2) encroaches on the central prerogatives of the Judiciary and thereby violates the separation of doctrine. It does this, the prisoners assert, by legislatively suspending a final judgment of an Article III court in violation of and Hayburn's According to the prisoners, the remedial order governing living conditions at the Pendleton Correctional Facility is a final judgment of an Article III court, and 3626(e)(2) constitutes an impermissible usurpation of judicial power because it commands the district court to suspend prospective relief under that order, albeit temporarily. An analysis of the principles underlying Hayburn's and as well as an examination of 3626(e)(2)'s interaction with the other provisions of 3626, makes clear that 3626(e)(2) does not offend these separation of principles. Hayburn's arose out of a 1792 statute that authorized pensions for veterans of the Revolutionary War. See Act of Mar. 23, 1792, ch. 11, The statute provided that the circuit courts were to review the applications and determine the appropriate amount of the pension, but that the Secretary of War had the discretion either to adopt or reject the courts' findings. Hayburn's 343 Although this Court did not reach the constitutional issue in Hayburn's the statements of five Justices, acting as circuit judges, were reported, and we have since recognized that the case "stands for the principle that Congress cannot vest review of the decisions of Article III courts in officials of the Executive Branch." ; see also As we recognized in such an effort by a coequal branch to "annul a final judgment" is "`an assumption of Judicial power' and therefore forbidden." (quoting Bates v. Kimball, 2 Chipman 77 (Vt. 1824)). Unlike the situation in Hayburn's 3626(e)(2) does not involve the direct review of a judicial decision by officials of the Legislative or Executive Branches. Nonetheless, the prisoners suggest that 3626(e)(2) falls within Hayburn's prohibition against an indirect legislative "suspension" or reopening of a final judgment, such as that addressed in See (quoting Hayburn's ("`[N]o decision of any court of the United States can, under any circumstances, be liable to a revision, or even suspension, by the [l]egislature itself, in whom no judicial power of any kind appears to be vested' ")). In we held that a federal statute that required federal courts to reopen final judgments that had been entered before the statute's enactment was unconstitutional on separation of grounds. The plaintiffs had brought a civil securities fraud action seeking money damages. While that action was pending, we ruled in Lampf, Pleva, Lipkind, Prupis & 501 U.S. 0 that such suits must be commenced within one year after the discovery of the facts constituting the violation and within three years after such violation. In light of this intervening decision, the plaintiffs' suit was untimely, and the District Court accordingly dismissed the action as time barred. After the judgment dismissing the 344 case had become final, Congress enacted a statute providing for the reinstatement of those actions, including the plaintiffs', that had been dismissed under Lampf but that would have been timely under the previously applicable statute of 514 U.S., at We concluded that this retroactive command that federal courts reopen final judgments exceeded Congress' authority. -219. The decision of an inferior court within the Article III hierarchy is not the final word of the department (unless the time for appeal has expired), and "[i]t is the obligation of the last court in the hierarchy that rules on the case to give effect to Congress's latest enactment, even when that has the effect of overturning the judgment of an inferior court, since each court, at every level, must `decide according to existing laws.' " ). But once a judicial decision achieves finality, it "becomes the last word of the judicial department." 514 U.S., And because Article III "gives the Federal Judiciary the power, not merely to rule on cases, but to decide them, subject to review only by superior courts in the Article III hierarchy," -219, the "judicial Power is one to render dispositive judgments," and Congress cannot retroactively command Article III courts to reopen final judgments, ). however, was careful to distinguish the situation before the Court in that caselegislation that attempted to reopen the dismissal of a suit seeking money damagesfrom legislation that "altered the prospective effect of injunctions entered by Article III courts." We emphasized that "nothing in our holding today calls into question" Congress' authority to alter the prospective effect of previously entered injunctions. Prospective relief under a continuing, executory decree remains subject to alteration due to changes in the underlying law. Cf. Land- 345 This conclusion follows from our decisions in and In Wheeling Bridge I, we held that a bridge across the Ohio River, because it was too low, unlawfully "obstruct[ed] the navigation of the Ohio," and ordered that the bridge be raised or permanently Shortly thereafter, Congress enacted legislation declaring the bridge to be a "lawful structur[e]," establishing the bridge as a "`post-roa[d] for the passage of the mails of the United States,' " and declaring that the Wheeling and Belmont Bridge Company was authorized to maintain the bridge at its then-current site and elevation. Wheeling Bridge II, After the bridge was destroyed in a storm, Pennsylvania sued to enjoin the bridge's reconstruction, arguing that the statute legalizing the bridge was unconstitutional because it effectively annulled the Court's decision in Wheeling Bridge I. We rejected that argument, concluding that the decree in Wheeling Bridge I provided for ongoing relief by "directing the abatement of the obstruction" which enjoined the defendants' from any continuance or reconstruction of the obstruction. Because the intervening statute altered the underlying law such that the bridge was no longer an unlawful obstruction, we held that it was "quite plain the decree of the court cannot be enforced." Wheeling Bridge II, The Court explained that had Wheeling Bridge I awarded money damages in an action at law, then that judgment would be final, and Congress' later action could not have affected plaintiff's right to those damages. See But because the decree entered in Wheeling Bridge I provided for prospective 346 reliefa continuing injunction against the continuation or reconstruction of the bridgethe ongoing validity of the injunctive relief depended on "whether or not [the bridge] interferes with the right of navigation." When Congress altered the underlying law such that the bridge was no longer an unlawful obstruction, the injunction against the maintenance of the bridge was not enforceable. See Applied here, the principles of Wheeling Bridge II demonstrate that the automatic stay of 3626(e)(2) does not unconstitutionally "suspend" or reopen a judgment of an Article III court. Section 3626(e)(2) does not by itself "tell judges when, how, or what to do." Instead, 3626(e)(2) merely reflects the change implemented by 3626(b), which does the "heavy lifting" in the statutory scheme by establishing new standards for prospective relief. See Section 3626 prohibits the continuation of prospective relief that was "approved or granted in the absence of a finding by the court that the relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means to correct the violation," 3626(b)(2), or in the absence of "findings based on the record that prospective relief remains necessary to correct a current and ongoing violation of a Federal right, extends no further than necessary to correct the violation of the Federal right, and that the prospective relief is narrowly drawn and the least intrusive means to correct the violation," 3626(b)(3). Accordingly, if prospective relief under an existing decree had been granted or approved absent such findings, then that prospective relief must cease, see 3626(b)(2), unless and until the court makes findings on the record that such relief remains necessary to correct an ongoing violation and is narrowly tailored, see 3626(b)(3). The PLRA's automatic stay provision assists in the enforcement 347 of 3626(b)(2) and (3) by requiring the court to stay any prospective relief that, due to the change in the underlying standard, is no longer enforceable, i. e., prospective relief that is not supported by the findings specified in 3626(b)(2) and (3). By establishing new standards for the enforcement of prospective relief in 3626(b), Congress has altered the relevant underlying law. The PLRA has restricted courts' authority to issue and enforce prospective relief concerning prison conditions, requiring that such relief be supported by findings and precisely tailored to what is needed to remedy the violation of a federal right. See ; Imprisoned Citizens ; 1 F.3d 594, ; Inmates of Suffolk County We note that the constitutionality of 3626(b) is not challenged here; we assume, without deciding, that the new standards it pronounces are effective. As and Wheeling Bridge II instruct, when Congress changes the law underlying a judgment awarding prospective relief, that relief is no longer enforceable to the extent it is inconsistent with the new law. Although the remedial injunction here is a "final judgment" for purposes of appeal, it is not the "last word of the judicial department." 514 U. S., The provision of prospective relief is subject to the continuing supervisory jurisdiction of the court, and therefore may be altered according to subsequent changes in the law. See Prospective relief must be "modified if, as it later turns out, one or more of the obligations placed upon the parties has become impermissible under federal law." ; see also Railway (11) ; The entry of the automatic stay under 3626(e)(2) helps to implement the change in the law caused by 3626(b)(2) and (3). If the prospective relief under the existing decree is not supported by the findings required under 3626(b)(2), and the court has not made the findings required by 3626(b)(3), then prospective relief is no longer enforceable and must be stayed. The entry of the stay does not reopen or "suspend" the previous judgment, nor does it divest the court of authority to decide the merits of the termination motion. Rather, the stay merely reflects the changed legal circumstancesthat prospective relief under the existing decree is no longer enforceable, and remains unenforceable unless and until the court makes the findings required by 3626(b)(3). For the same reasons, 3626(e)(2) does not violate the separation of principle articulated in United In that case, the executor of the estate of a Confederate sympathizer, sought to recover the value of property seized by the United States during the Civil War, which by statute was recoverable if could demonstrate that the decedent had not given aid or comfort to the rebellion. See In United we held that a Presidential pardon satisfied the burden of proving that no such aid or comfort had been given. While 's case was pending, Congress enacted a statute providing that a pardon would instead be taken as proof that the pardoned individual had in fact aided the enemy, and if the claimant offered proof of a pardon the court must dismiss the case for lack of jurisdiction. -134. We concluded that the statute was unconstitutional because it purported to "prescribe 349 rules of decision to the Judicial Department of the government in cases pending before it." Here, the prisoners argue that Congress has similarly prescribed a rule of decision because, for the period of time until the district court makes a final decision on the merits of the motion to terminate prospective relief, 3626(e)(2) mandates a particular outcome: the termination of prospective relief. As we noted in however, "[w]hatever the precise scope of later decisions have made clear that its prohibition does not take hold when Congress `amend[s] applicable law.' " 514 U.S., ). The prisoners concede this point but contend that, because 3626(e)(2) does not itself amend the legal standard, is still applicable. As we have explained, however, 3626(e)(2) must be read not in isolation, but in the context of 3626 as a whole. Section 3626(e)(2) operates in conjunction with the new standards for the continuation of prospective relief; if the new standards of 3626(b)(2) are not met, then the stay "shall operate" unless and until the court makes the findings required by 3626(b)(3). Rather than prescribing a rule of decision, 3626(e)(2) simply imposes the consequences of the court's application of the new legal standard. Finally, the prisoners assert that, even if 3626(e)(2) does not fall within the recognized prohibitions of Hayburn's or it still offends the principles of separation of because it places a deadline on judicial decisionmaking, thereby interfering with core judicial functions. Congress' imposition of a time limit in 3626(e)(2), however, does not in itself offend the structural concerns underlying the Constitution's separation of For example, if the PLRA granted courts 10 years to determine whether they could make the required findings, then certainly the PLRA would raise no apprehensions that Congress had encroached on the core function of the Judiciary to decide "cases and controversies properly before them." United 0 (10). Respondents' concern with the time limit, then, must be its relative brevity. But whether the time is so short that it deprives litigants of a meaningful opportunity to be heard is a due process question, an issue that is not before us. We leave open, therefore, the question whether this time limit, particularly in a complex case, may implicate due process concerns. In contrast to due process, which principally serves to protect the personal rights of litigants to a full and fair hearing, separation of principles are primarily addressed to the structural concerns of protecting the role of the independent Judiciary within the constitutional design. In this action, we have no occasion to decide whether there could be a time constraint on judicial action that was so severe that it implicated these structural separation of concerns. The PLRA does not deprive courts of their adjudicatory role, but merely provides a new legal standard for relief and encourages courts to apply that standard promptly. Through the PLRA, Congress clearly intended to make operation of the automatic stay mandatory, precluding courts from exercising their equitable to enjoin the stay. And we conclude that this provision does not violate separation of principles. Accordingly, the judgment of the Court of Appeals for the Seventh Circuit is reversed, and the action is remanded for further proceedings consistent with this opinion. It is so ordered. Justice Souter, with whom Justice Ginsburg joins, concurring in part and dissenting in part. I agree that 18 U.S. C. 3626(e)(2) (1994 ed., Supp. IV) is unambiguous and join Parts I and II of the majority opinion. I also agree that applying the automatic stay may raise the due process issue, of whether a plaintiff has a fair chance to preserve an existing judgment that was valid when entered. Ante this page. But I believe that applying the statute may 1 also raise a serious separation-of- issue if the time it allows turns out to be inadequate for a court to determine whether the new prerequisite to relief is satisfied in a particular case.[1] I thus do not join Part III of the Court's opinion and on remand would require proceedings consistent with this one. I respectfully dissent from the terms of the Court's disposition. A prospective remedial order may rest on at least three different legal premises: the underlying right meant to be secured; the rules of procedure for obtaining relief, defining requisites of pleading, notice, and so on; and, in some cases, rules lying between the other two, such as those defining a required level of certainty before some remedy may be ordered, or the permissible scope of relief. At issue here are rules of the last variety.[2] Congress has the authority to change rules of this sort by imposing new conditions precedent for the continuing enforcement of existing, prospective remedial orders and requiring courts to apply the new rules to those orders. Cf. If its legislation gives courts adequate time to determine the applicability of a new rule to an old order and to take the action necessary to apply it or to vacate the order, there seems little basis for claiming that Congress has crossed 2 the constitutional line to interfere with the performance of any judicial function. But if determining whether a new rule applies requires time (say, for new factfinding) and if the statute provides insufficient time for a court to make that determination before the statute invalidates an extant remedial order, the application of the statute raises a serious question whether Congress has in practical terms assumed the judicial function. In such a case, the prospective order suddenly turns unenforceable not because a court has made a judgment to terminate it due to changed law or fact, but because no one can tell in the time allowed whether the new rule requires modification of the old order. One way to view this result is to see the Congress as mandating modification of an order that may turn out to be perfectly enforceable under the new rule, depending on judicial factfinding. If the facts are taken this way, the new statute might well be treated as usurping the judicial function of determining the applicability of a general rule in particular factual circumstances.[3] Cf. United Whether this constitutional issue arises on the facts of this action, however, is something we cannot yet tell, for the *3 District Court did not address the sufficiency of the time provided by the statute to make the findings required by 3626(b)(3) in this particular action.[4] Absent that determination, I would not decide the separation-of- question, but simply remand for further proceedings. If the District Court determined both that it lacked adequate time to make the requisite findings in the period before the automatic stay would become effective, and that applying the stay would violate the separation of the question would then be properly presented.	2,052
Justice Breyer	dissenting	false	Miller v. French	2000-06-19	null	https://www.courtlistener.com/opinion/118378/miller-v-french/	https://www.courtlistener.com/api/rest/v3/clusters/118378/	2,000	1999-078	1	5	4	The Prison Litigation Reform Act of 1995 (PLRA) says that "any party or intervener" may move to terminate any "prospective relief" previously granted by the court, 18 U.S. C. § 3626(b)(1) (1994 ed., Supp. IV), and that the court shall terminate (or modify) that relief unless it is "necessary to correct a current and ongoing violation of [a] Federal right, extends no further than necessary to correct the violation . . . [and is] the least intrusive means" to do so. 18 U.S. C. § 3626(b)(3). We here consider a related procedural provision of the PLRA. It says that "[a]ny motion to modify or terminate prospective relief . . . shall operate as a stay" of that prospective relief "during the period" beginning (no later than) the 90th day after the filing of the motion and ending when the motion is decided. § 3626(e)(2). This provision means 354 approximately the following: Suppose that a district court, in 1980, had entered an injunction governing present and future prison conditions. Suppose further that in 1996 a party filed a motion under the PLRA asking the court to terminate (or to modify) the 1980 injunction. That district court would have no more than 90 days to decide whether to grant the motion. After those 90 days, the 1980 injunction would terminate automaticallyregaining life only if, when, and to the extent that the judge eventually decided to deny the PLRA motion. The majority interprets the words "shall operate as a stay" to mean, in terms of my example, that the 1980 injunction must become ineffective after the 90th day, no matter what. The Solicitor General, however, believes that the view adopted by the majority interpretation is too rigid and calls into doubt the constitutionality of the provision. He argues that the statute is silent as to whether the district court can modify or suspend the operation of the automatic stay. He would find in that silence sufficient authority for the court to create an exception to the 90-day time limit where circumstances make it necessary to do so. As so read, the statute would neither displace the courts' traditional equitable authority nor raise significant constitutional difficulties. See Califano v. Yamasaki, 442 U.S. 682, 705 (1979) (only "clearest" congressional "command" displaces courts' traditional equity powers); Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U.S. 568, 575 (1988) (the Court will construe a statute to avoid constitutional problems "unless such construction is plainly contrary to the intent of Congress"). I agree with the Solicitor General and believe we should adopt that "`reasonable construction' " of the statute. Ibid. (quoting Hooper v. California, 155 U.S. 648, 657 (1895), stating "`every reasonable construction must be resorted to, in order to save a statute from unconstitutionality' "). 355 I At the outset, one must understand why a more flexible interpretation of the statute might be needed. To do so, one must keep in mind the extreme circumstances that at least some prison litigation originally sought to correct, the complexity of the resulting judicial decrees, and the potential difficulties arising out of the subsequent need to review those decrees in order to make certain they follow Congress' PLRA directives. A hypothetical example based on actual circumstances may help. In January 1979, a Federal District Court made 81 factual findings describing extremely poorindeed "barbaric and shocking"prison conditions in the Commonwealth of Puerto Rico. Morales Feliciano v. Romero Barcelo, 497 F. Supp. 14, 32 (PR 1979). These conditions included prisons typically operating with twice the number of prisoners they were designed to hold; inmates living in 16 square feet of space (i. e., only 4 feet by 4 feet); inmates without medical care, without psychiatric care, without beds, without mattresses, without hot water, without soap or towels or toothbrushes or underwear; food prepared on a budget of $1.50 per day and "tons of food . . . destroyed because of . . . rats, vermin, worms, and spoilage"; "no working toilets or showers," "urinals [that] flush into the sinks," "plumbing systems . . . in a state of collapse," and a "stench" that was "omnipresent"; "exposed wiring . . . no fire extinguisher, . . . [and] poor ventilation"; "calabozos," or dungeons, "like cages with bars on the top" or with two slits in a steel door opening onto a central corridor, the floors of which were "covered with raw sewage" and which contained prisoners with severe mental illnesses, "caged like wild animals," sometimes for months; areas of a prison where mentally ill inmates were "kept in cells naked, without beds, without mattresses, without any private possessions, and most of them without toilets that work and without drinking water." Id., at 20-23, 26- 356 27, 29, 32. These conditions had led to epidemics of communicable diseases, untreated mental illness, suicides, and murders. Id., at 32. The District Court held that these conditions amounted to constitutionally forbidden "cruel and unusual punishment." Id., at 33-36. It entered 30 specific orders designed to produce constitutionally mandated improvement by requiring the prison system to, for example, screen food handlers for communicable diseases, close the "calabozos," move mentally ill patients to hospitals, fix broken plumbing, and provide at least 35 square feet (i. e., 5 feet by 7 feet) of living space to each prisoner. Id., at 39-41. The very pervasiveness and seriousness of the conditions described in the court's opinion made those conditions difficult to cure quickly. Over the next decade, the District Court entered further orders embodied in 15 published opinions, affecting 21 prison institutions. These orders concerned, inter alia, overcrowding, security, disciplinary proceedings, prisoner classification, rehabilitation, parole, and drug addiction treatment. Not surprisingly, the related proceedings involved extensive evidence and argument consuming thousands of pages of transcript. See Morales Feliciano v. Romero Barcelo, 672 F. Supp. 591, 595 (PR 1986). Their implementation involved the services of two monitors, two assistants, and a Special Master. Along the way, the court documented a degree of "administrative chaos" in the prison system, Morales Feliciano v. Hernandez Colon, 697 F. Supp. 37, 44 (PR 1988), and entered findings of contempt of court against the Commonwealth, followed by the assessment and collection of more than $74 million in fines. See Morales Feliciano v. Hernandez Colon, 775 F. Supp. 487, 488, and n. 2 (PR 1991). Prison conditions subsequently have improved in some respects. Morales Feliciano v. Rossello Gonzalez, 13 F. Supp. 2d 151, 179 (PR 1998). I express no opinion as to whether, or which of, the earlier orders are still needed. But my 357 brief summary of the litigation should illustrate the potential difficulties involved in making the determination of continuing necessity required by the PLRA. Where prison litigation is as complex as the litigation I have just described, it may prove difficult for a district court to reach a fair and accurate decision about which orders remain necessary, and are the "least intrusive means" available, to prevent or correct a continuing violation of federal law. The orders, which were needed to resolve serious constitutional problems and may still be needed where compliance has not yet been assured, are complex, interrelated, and applicable to many different institutions. Ninety days might not provide sufficient time to ascertain the views of several different parties, including monitors, to allow them to present evidence, and to permit each to respond to the arguments and evidence of the others. It is at least possible, then, that the statute, as the majority reads it, would sometimes terminate a complex system of orders entered over a period of years by a court familiar with the local problemperhaps only to reinstate those orders later, when the termination motion can be decided. Such an automatic termination could leave constitutionally prohibited conditions unremedied, at least temporarily. Alternatively, the threat of termination could lead a district court to abbreviate proceedings that fairness would otherwise demand. At a minimum, the mandatory automatic stay would provide a recipe for uncertainty, as complex judicial orders that have long governed the administration of particular prison systems suddenly turn off, then (perhaps selectively) back on. So read, the statute directly interferes with a court's exercise of its traditional equitable authority, rendering temporarily ineffective pre-existing remedies aimed at correcting past, and perhaps ongoing, violations of the Constitution. That interpretation, as the majority itself concedes, might give rise to serious constitutional problems. Ante, at 350. 358 II The Solicitor General's more flexible reading of the statute avoids all these problems. He notes that the relevant language says that the motion to modify or terminate prospective relief "shall operate as a stay" after a period of 30 days, extendable for "good cause" to 90 days. 18 U.S. C. § 3626(e)(2); see also Brief for United States 12. The language says nothing, however, about the district court's power to modify or suspend the operation of the "stay." In the Solicitor General's view, the "stay" would determine the legal status quo; but the district court would retain its traditional equitable power to change that status quo once the party seeking the modification or suspension of the operation of the stay demonstrates that the stay "would cause irreparable injury, that the termination motion is likely to be defeated, and that the merits of the motion cannot be resolved before the automatic stay takes effect." Ibid. Where this is shown, the "court has discretion to suspend the automatic stay and require prison officials to comply with outstanding court orders until the court resolves the termination motion on the merits," id., at 12-13, subject to immediate appellate review, 18 U.S. C. § 3626(e)(4). Is this interpretation a "reasonable construction" of the statute? Edward J. DeBartolo Corp., 485 U. S., at 575. I note first that the statutory language is open to the Solicitor General's interpretation. A district court ordinarily can stay the operation of a judicial order (such as a stay or injunction), see Scripps-Howard Radio, Inc. v. FCC, 316 U.S. 4, 9-10, and n. 4 (1942), when a party demonstrates the need to do so in accordance with traditional equitable criteria (irreparable injury, likelihood of success on the merits, and a balancing of possible harms to the parties and the public, see Doran v. Salem Inn, Inc., 422 U.S. 922, 931 (1975); Yakus v. United States, 321 U.S. 414, 440 (1944)). There is no logical inconsistency in saying both (1) a motion (to terminate) "shall operate as a stay," and (2) the court retains the power 359 to modify or delay the operation of the stay in appropriate circumstances. The statutory language says nothing about this last-mentioned power. It is silent. It does not direct the district court to leave the stay in place come what may. Nor does this more flexible interpretation deprive the procedural provision of meaning. The filing of the motion to terminate prospective relief will still, after a certain period, operate as a stay without further action by the court. Thus, the motion automatically changes the status quo and imposes upon the party wishing to suspend the automatic stay the burden of demonstrating strong, special reasons for doing so. The word "automatic" in the various subsection titles does not prove the contrary, for that word often means selfstarting, not unstoppable. See Websters Third New International Dictionary 148 (1993). Indeed, the Bankruptcy Act uses the words "automatic stay" to describe a provision stating that "a petition filed . . . operates as a stay" of certain other judicial proceedingsdespite the fact that a later portion of that same provision makes clear that under certain circumstances the bankruptcy court may terminate, annul, or modify the stay. 11 U.S. C. § 362(d); see also 143 Cong. Rec. S12269 (Nov. 9, 1997) (statement of Sen. Abraham) (explaining that § 3626(e)(2) was modeled after the Bankruptcy Act provision). And the Poultry Producers Financial Protection Act of 1987 specifies that a court of appeals decree affirming an order of the Secretary of Agriculture "shall operate as an injunction" restraining the "live poultry dealer" from violating that order, 7 U.S. C. § 228b-3(g); yet it appears that no one has ever suggested that a court of appeals lacks the power to modify that "injunction" where appropriate. Moreover, the change in the legal status quo that the automatic stay would bring about, and the need to demonstrate a special need to lift the stay (according to traditional equitable criteria), mean that the stay would remain in effect in all but highly unusual cases. 360 In addition, the surrounding procedural provisions are most naturally read as favoring the flexible interpretation. The immediately preceding provision requires the court to rule "promptly" upon the motion to terminate and says that "[m]andamus shall lie to remedy any failure to issue a prompt ruling." 18 U.S. C. § 3626(e)(1). If a motion to terminate takes effect automatically through the "stay" after 30 or 90 days, it is difficult to understand what purpose would be served by providing for mandamusa procedure that itself (in so complicated a matter) could take several weeks. But if the automatic stay might be modified or lifted in an unusual case, providing for mandamus makes considerable sense. It guarantees that an appellate court will make certain that unusual circumstances do in fact justify any such modification or lifting of the stay. A later provision that provides for immediate appeal of any order "staying, suspending, delaying, or barring the operation of the automatic stay" can be read as providing for similar appellate review for similar reasons. § 3626(e)(4). Further, the legislative history is neutral, for it is silent on this issue. Yet there is relevant judicial precedent. That precedent does not read statutory silence as denying judges authority to exercise their traditional equitable powers. Rather, it reads statutory silence as authorizing the exercise of those powers. This Court has said, for example, that "[o]ne thing is clear. Where Congress wished to deprive the courts of this historic power, it knew how to use apt words only once has it done so and in a statute born of the exigencies of war." Scripps-Howard, supra, at 17. Compare Lockerty v. Phillips, 319 U.S. 182, 186-187 (1943) (finding that courts were deprived of equity powers where the statute explicitly removed jurisdiction), with Scripps-Howard, supra, at 8-10 (refusing to read silence as depriving courts of their historic equity power), and Califano, 442 U. S., at 705-706 (same). These cases recognize the importance of permitting courts in equity cases to tailor relief, and related 361 relief procedure, to the exigencies of particular cases and individual circumstances. In doing so, they recognize the fact that in certain circumstances justice requires the flexibility necessary to treat different cases differentlythe rationale that underlies equity itself. Cf. Hecht Co. v. Bowles, 321 U.S. 321, 329 (1944) ("The essence of equity jurisdiction has been the power of the Chancellor to do equity and to mould each decree to the necessities of the particular case"). Finally, the more flexible interpretation is consistent with Congress' purposes as revealed in the statute. Those purposes include the avoidance of new judicial relief that is overly broad or no longer necessary and the reassessment of pre-existing relief to bring it into conformity with these standards. But Congress has simultaneously expressed its intent to maintain relief that is narrowly drawn and necessary to end unconstitutional practices. See 18 U.S. C. §§ 3626(a)(1), (a)(2), (b)(3). The statute, as flexibly interpreted, risks interfering with the first set of objectives only to the extent that the speedy appellate review provided in the statute fails to control district court error. The same interpretation avoids the improper provisional termination of relief that is constitutionally necessary. The risk of an occasional small additional delay seems a comparatively small price to pay (in terms of the statute's entire set of purposes) to avoid the serious constitutional problems that accompany the majority's more rigid interpretation. The upshot is a statute that, when read in light of its language, structure, purpose, and history, is open to an interpretation that would allow a court to modify or suspend the automatic stay when a party, in accordance with traditional equitable criteria, has demonstrated a need for such an exception. That interpretation reflects this Court's historic reluctance to read a statute as depriving courts of their traditional equitable powers. It also avoids constitutional difficulties that might arise in unusual cases. *362 I do not argue that this interpretation reflects the most natural reading of the statute's language. Nor do I assert that each individual legislator would have endorsed that reading at the time. But such an interpretation is a reasonable construction of the statute. That reading harmonizes the statute's language with other basic legal principles, including constitutional principles. And, in doing so, it better fits the full set of legislative objectives embodied in the statute than does the more rigid reading that the majority adopts. For these reasons, I believe that the Solicitor General's more flexible reading is the proper reading of the statute before us. I would consequently vacate the decision of the Court of Appeals and remand this action for further proceedings.	The Prison Litigation Reform Act of 1995 (PLRA) says that "any party or intervener" may move to terminate any "prospective relief" previously granted by the court, 18 U.S. C. 3626(b)(1) (1994 ed., Supp. IV), and that the court shall terminate (or modify) that relief unless it is "necessary to correct a current and ongoing violation of [a] Federal right, extends no further than necessary to correct the violation [and is] the least intrusive means" to do so. 18 U.S. C. 3626(b)(3). We here consider a related procedural provision of the PLRA. It says that "[a]ny motion to modify or terminate prospective relief shall operate as a stay" of that prospective relief "during the period" beginning (no later than) the 90th day after the filing of the motion and ending when the motion is decided. 3626(e)(2). This provision means 354 approximately the following: Suppose that a district court, in 1980, had entered an injunction governing present and future prison conditions. Suppose further that in 1996 a party filed a motion under the PLRA asking the court to terminate (or to modify) the 1980 injunction. That district court would have no more than 90 days to decide whether to grant the motion. After those 90 days, the 1980 injunction would terminate automaticallyregaining life only if, when, and to the extent that the judge eventually decided to deny the PLRA motion. The majority interprets the words "shall operate as a stay" to mean, in terms of my example, that the 1980 injunction must become ineffective after the 90th day, no matter what. The Solicitor General, however, believes that the view adopted by the majority interpretation is too rigid and calls into doubt the constitutionality of the provision. He argues that the statute is silent as to whether the district court can modify or suspend the operation of the automatic stay. He would find in that silence sufficient authority for the court to create an exception to the 90-day time limit where circumstances make it necessary to do so. As so read, the statute would neither displace the courts' traditional equitable authority nor raise significant constitutional difficulties. See ; Edward J. DeBartolo I agree with the Solicitor General and believe we should adopt that "`reasonable construction' " of the statute. stating "`every reasonable construction must be resorted to, in order to save a statute from unconstitutionality' "). 355 I At the outset, one must understand why a more flexible interpretation of the statute might be needed. To do so, one must keep in mind the extreme circumstances that at least some prison litigation originally sought to correct, the complexity of the resulting judicial decrees, and the potential difficulties arising out of the subsequent need to review those decrees in order to make certain they follow Congress' PLRA directives. A hypothetical example based on actual circumstances may help. In January a Federal District Court made 81 factual findings describing extremely poorindeed "barbaric and shocking"prison conditions in the Commonwealth of Puerto Rico. Morales These conditions included prisons typically operating with twice the number of prisoners they were designed to hold; inmates living in 16 square feet of space (i. e., only 4 feet by 4 feet); inmates without medical care, without psychiatric care, without beds, without mattresses, without hot water, without soap or towels or toothbrushes or underwear; food prepared on a budget of $1.50 per day and "tons of food destroyed because of rats, vermin, worms, and spoilage"; "no working toilets or showers," "urinals [that] flush into the sinks," "plumbing systems in a state of collapse," and a "stench" that was "omnipresent"; "exposed wiring no fire extinguisher, [and] poor ventilation"; "calabozos," or dungeons, "like cages with bars on the top" or with two slits in a steel door opening onto a central corridor, the floors of which were "covered with raw sewage" and which contained prisoners with severe mental illnesses, "caged like wild animals," sometimes for months; areas of a prison where mentally ill inmates were "kept in cells naked, without beds, without mattresses, without any private possessions, and most of them without toilets that work and without drinking water." 26- 356 27, 29, These conditions had led to epidemics of communicable diseases, untreated mental illness, suicides, and murders. at The District Court held that these conditions amounted to constitutionally forbidden "cruel and unusual punishment." It entered 30 specific orders designed to produce constitutionally mandated improvement by requiring the prison system to, for example, screen food handlers for communicable diseases, close the "calabozos," move mentally ill patients to hospitals, fix broken plumbing, and provide at least 35 square feet (i. e., 5 feet by 7 feet) of living space to each prisoner. The very pervasiveness and seriousness of the conditions described in the court's opinion made those conditions difficult to cure quickly. Over the next decade, the District Court entered further orders embodied in 15 published opinions, affecting 21 prison institutions. These orders concerned, inter alia, overcrowding, security, disciplinary proceedings, prisoner classification, rehabilitation, parole, and drug addiction treatment. Not surprisingly, the related proceedings involved extensive evidence and argument consuming thousands of pages of transcript. See Morales Their implementation involved the services of two monitors, two assistants, and a Special Master. Along the way, the court documented a degree of "administrative chaos" in the prison system, Morales and entered findings of contempt of court against the Commonwealth, followed by the assessment and collection of more than $74 million in fines. See Morales Prison conditions subsequently have improved in some respects. Morales I express no opinion as to whether, or which of, the earlier orders are still needed. But my 357 brief summary of the litigation should illustrate the potential difficulties involved in making the determination of continuing necessity required by the PLRA. Where prison litigation is as complex as the litigation I have just described, it may prove difficult for a district court to reach a fair and accurate decision about which orders remain necessary, and are the "least intrusive means" available, to prevent or correct a continuing violation of federal law. The orders, which were needed to resolve serious constitutional problems and may still be needed where compliance has not yet been assured, are complex, interrelated, and applicable to many different institutions. Ninety days might not provide sufficient time to ascertain the views of several different parties, including monitors, to allow them to present evidence, and to permit each to respond to the arguments and evidence of the others. It is at least possible, then, that the statute, as the majority reads it, would sometimes terminate a complex system of orders entered over a period of years by a court familiar with the local problemperhaps only to reinstate those orders later, when the termination motion can be decided. Such an automatic termination could leave constitutionally prohibited conditions unremedied, at least temporarily. Alternatively, the threat of termination could lead a district court to abbreviate proceedings that fairness would otherwise demand. At a minimum, the mandatory automatic stay would provide a recipe for uncertainty, as complex judicial orders that have long governed the administration of particular prison systems suddenly turn off, then (perhaps selectively) back on. So read, the statute directly interferes with a court's exercise of its traditional equitable authority, rendering temporarily ineffective pre-existing remedies aimed at correcting past, and perhaps ongoing, violations of the Constitution. That interpretation, as the majority itself concedes, might give rise to serious constitutional problems. Ante, at 350. 358 II The Solicitor General's more flexible reading of the statute avoids all these problems. He notes that the relevant language says that the motion to modify or terminate prospective relief "shall operate as a stay" after a period of 30 days, extendable for "good cause" to 90 days. 18 U.S. C. 3626(e)(2); see also Brief for United States 12. The language says nothing, however, about the district court's power to modify or suspend the operation of the "stay." In the Solicitor General's view, the "stay" would determine the legal status quo; but the district court would retain its traditional equitable power to change that status quo once the party seeking the modification or suspension of the operation of the stay demonstrates that the stay "would cause irreparable injury, that the termination motion is likely to be defeated, and that the merits of the motion cannot be resolved before the automatic stay takes effect." Where this is shown, the "court has discretion to suspend the automatic stay and require prison officials to comply with outstanding court orders until the court resolves the termination motion on the merits," subject to immediate appellate review, 18 U.S. C. 3626(e)(4). Is this interpretation a "reasonable construction" of the statute? Edward J. DeBartolo 485 U. S., at I note first that the statutory language is open to the Solicitor General's interpretation. A district court ordinarily can stay the operation of a judicial order (such as a stay or injunction), see Radio, when a party demonstrates the need to do so in accordance with traditional equitable criteria ; 1 U.S. 414, 0 (19)). There is no logical inconsistency in saying both (1) a motion (to terminate) "shall operate as a stay," and (2) the court retains the power 359 to modify or delay the operation of the stay in appropriate circumstances. The statutory language says nothing about this last-mentioned power. It is silent. It does not direct the district court to leave the stay in place come what may. Nor does this more flexible interpretation deprive the procedural provision of meaning. The filing of the motion to terminate prospective relief will still, after a certain period, operate as a stay without further action by the court. Thus, the motion automatically changes the status quo and imposes upon the party wishing to suspend the automatic stay the burden of demonstrating strong, special reasons for doing so. The word "automatic" in the various subsection titles does not prove the contrary, for that word often means selfstarting, not unstoppable. See Websters Third New International Dictionary 148 (1993). Indeed, the Bankruptcy Act uses the words "automatic stay" to describe a provision stating that "a petition filed operates as a stay" of certain other judicial proceedingsdespite the fact that a later portion of that same provision makes clear that under certain circumstances the bankruptcy court may terminate, annul, or modify the stay. 11 U.S. C. 362(d); see also 143 Cong. Rec. S12269 (Nov. 9, 1997) (statement of Sen. Abraham) (explaining that 3626(e)(2) was modeled after the Bankruptcy Act provision). And the Poultry Producers Financial Protection Act of 1987 specifies that a court of appeals decree affirming an order of the Secretary of Agriculture "shall operate as an injunction" restraining the "live poultry dealer" from violating that order, 7 U.S. C. 228b-3(g); yet it appears that no one has ever suggested that a court of appeals lacks the power to modify that "injunction" where appropriate. Moreover, the change in the legal status quo that the automatic stay would bring about, and the need to demonstrate a special need to lift the stay (according to traditional equitable criteria), mean that the stay would remain in effect in all but highly unusual cases. 360 In addition, the surrounding procedural provisions are most naturally read as favoring the flexible interpretation. The immediately preceding provision requires the court to rule "promptly" upon the motion to terminate and says that "[m]andamus shall lie to remedy any failure to issue a prompt ruling." 18 U.S. C. 3626(e)(1). If a motion to terminate takes effect automatically through the "stay" after 30 or 90 days, it is difficult to understand what purpose would be served by providing for mandamusa procedure that itself (in so complicated a matter) could take several weeks. But if the automatic stay might be modified or lifted in an unusual case, providing for mandamus makes considerable sense. It guarantees that an appellate court will make certain that unusual circumstances do in fact justify any such modification or lifting of the stay. A later provision that provides for immediate appeal of any order "staying, suspending, delaying, or barring the operation of the automatic stay" can be read as providing for similar appellate review for similar reasons. 3626(e)(4). Further, the legislative history is neutral, for it is silent on this issue. Yet there is relevant judicial precedent. That precedent does not read statutory silence as denying judges authority to exercise their traditional equitable powers. Rather, it reads statutory silence as authorizing the exercise of those powers. This Court has said, for example, that "[o]ne thing is clear. Where Congress wished to deprive the courts of this historic power, it knew how to use apt words only once has it done so and in a statute born of the exigencies of war." Compare with and 2 U. S., at -706 These cases recognize the importance of permitting courts in equity cases to tailor relief, and related 361 relief procedure, to the exigencies of particular cases and individual circumstances. In doing so, they recognize the fact that in certain circumstances justice requires the flexibility necessary to treat different cases differentlythe rationale that underlies equity itself. Cf. Hecht 1 U.S. 1, 9 (19) Finally, the more flexible interpretation is consistent with Congress' purposes as revealed in the statute. Those purposes include the avoidance of new judicial relief that is overly broad or no longer necessary and the reassessment of pre-existing relief to bring it into conformity with these standards. But Congress has simultaneously expressed its intent to maintain relief that is narrowly drawn and necessary to end unconstitutional practices. See 18 U.S. C. 3626(a)(1), (a)(2), (b)(3). The statute, as flexibly interpreted, risks interfering with the first set of objectives only to the extent that the speedy appellate review provided in the statute fails to control district court error. The same interpretation avoids the improper provisional termination of relief that is constitutionally necessary. The risk of an occasional small additional delay seems a comparatively small price to pay (in terms of the statute's entire set of purposes) to avoid the serious constitutional problems that accompany the majority's more rigid interpretation. The upshot is a statute that, when read in light of its language, structure, purpose, and history, is open to an interpretation that would allow a court to modify or suspend the automatic stay when a party, in accordance with traditional equitable criteria, has demonstrated a need for such an exception. That interpretation reflects this Court's historic reluctance to read a statute as depriving courts of their traditional equitable powers. It also avoids constitutional difficulties that might arise in unusual cases. *362 I do not argue that this interpretation reflects the most natural reading of the statute's language. Nor do I assert that each individual legislator would have endorsed that reading at the time. But such an interpretation is a reasonable construction of the statute. That reading harmonizes the statute's language with other basic legal principles, including constitutional principles. And, in doing so, it better fits the full set of legislative objectives embodied in the statute than does the more rigid reading that the majority adopts. For these reasons, I believe that the Solicitor General's more flexible reading is the proper reading of the statute before us. I would consequently vacate the decision of the Court of Appeals and remand this action for further proceedings.	2,053
Justice Alito	majority	false	Hein v. Freedom From Religion Foundation, Inc.	2007-06-25	null	https://www.courtlistener.com/opinion/145704/hein-v-freedom-from-religion-foundation-inc/	https://www.courtlistener.com/api/rest/v3/clusters/145704/	2,007	2006-071	1	5	4	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, 88 S. Ct. 1942, 20 L. Ed. 2d 947 (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' 2560 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.[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 (C.A.7 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 2561 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, 88 S. Ct. 1942, 20 L. Ed. 2d 947, 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, 88 S. Ct. 1942). 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 tax-paying 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 (C.A.7 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 2562 resolve this question, 549 U.S. ___, 127 S. Ct. 722, 166 L. Ed. 2d 559 (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. ___, ___, 126 S. Ct. 1854, 1861, 164 L. Ed. 2d 589 (2006) (quoting Elk Grove Unified School Dist. v. Newdow, 542 U.S. 1, 11, 124 S. Ct. 2301, 159 L. Ed. 2d 98 (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, 117 S. Ct. 2312, 138 L. Ed. 2d 849 (1997) (quoting Simon v. Eastern Ky. Welfare Rights Organization, 426 U.S. 26, 37, 96 S. Ct. 1917, 48 L. Ed. 2d 450 (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, 109 S. Ct. 2037, 104 L. Ed. 2d 696 (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, 104 S. Ct. 3315, 82 L. Ed. 2d 556 (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, 109 S. Ct. 2037 (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, 102 S. Ct. 752, 70 L. Ed. 2d 700 (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, 2 L. Ed. 60 (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, 102 S. Ct. 752 (quoting Blair v. United States, 250 U.S. 273, 279, 39 S. Ct. 468, 63 L. Ed. 979 (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, 43 S. Ct. 597, 67 L. Ed. 1078 (1923). 2563 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, 64 S. Ct. 717, 88 L. Ed. 938 (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, 43 S. Ct. 597. 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, 43 S. Ct. 597. 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, 43 S. Ct. 597; see also Alabama Power Co. v. Ickes, 302 U.S. 464, 478-479, 58 S. Ct. 300, 82 L. Ed. 374 (1938). In Doremus v. Board of Ed. of Hawthorne, 342 U.S. 429, 433, 72 S. Ct. 394, 96 L. Ed. 475 (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, 72 S. Ct. 394. 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 2564 benefits him than it does the public at largedoes not state an Article III case or controversy." Lujan v. Defenders of Wildlife, 504 U.S. 555, 573-574, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992).[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, 88 S. Ct. 1942. 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 2565 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, 88 S. Ct. 1942. 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, 102 S. Ct. 752. 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, 88 S. Ct. 1942. 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.[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, 88 S. Ct. 1942. 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 (S.D.N.Y. 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 2566 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, 88 S. Ct. 1942. 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, 102 S. Ct. 752. 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.[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, 102 S. Ct. 752. 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, 102 S. Ct. 752. 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, 102 S. Ct. 752 (quoting Flast, supra, at 102, 88 S. Ct. 1942).[5] Similarly, in Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 94 S. Ct. 2925, 41 L. Ed. 2d 706 (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, 94 S. Ct. 2925. This was the case even though the plaintiffs sought to reclaim reservist pay received by those Memberspay 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 2567 authorizing pay to those who lawfully were Reservists." Ibid., n. 17. See also United States v. Richardson, 418 U.S. 166, 175, 94 S. Ct. 2940, 41 L. Ed. 2d 678 (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, 108 S. Ct. 2562, 101 L. Ed. 2d 520 (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, 108 S. Ct. 2562. 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, 108 S. Ct. 2562 (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, 108 S. Ct. 2562; see also id., at 623, 108 S. Ct. 2562 (O'Connor, J., concurring) (noting the "partnership between governmental and religious institutions contemplated by the AFLA").[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, 108 S. Ct. 2562. 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 Branchthe allocation of which "is a[n] administrative decision traditionally regarded as committed to agency discretion." Lincoln v. Vigil, 508 U.S. 182, 192, 113 S. Ct. 2024, 124 L. Ed. 2d 101 (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 2568 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.[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, 108 S. Ct. 2562. 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, 102 S. Ct. 752, and thus lacks the requisite "logical nexus" between taxpayer status "and the type of legislative enactment attacked." Flast, 392 U.S., at 102, 88 S. Ct. 1942. 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, 88 S. Ct. 1942, 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, 102 S. Ct. 752. Moreover, we have repeatedly emphasized that the Flast exception has a "narrow application in our precedent," Cuno, 547 U.S., at ___, 126 S.Ct., at 1865, that only "slightly lowered" the bar on taxpayer standing, Richardson, 418 U.S., at 173, 94 S. Ct. 2940, and that must be applied with "rigor," Valley Forge, supra, at 481, 102 S. Ct. 752. It is significant that, in the four decades since its creation, the Flast exception has 2569 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, 91 S. Ct. 2091, 29 L. Ed. 2d 790 (1971) (no taxpayer standing to sue under Free Exercise Clause of First Amendment); Richardson, 418 U.S., at 175, 94 S. Ct. 2940 (no taxpayer standing to sue under Statement and Account Clause of Art. I); Schlesinger, 418 U.S., at 228, 94 S. Ct. 2925 (no taxpayer standing to sue under Incompatibility Clause of Art. I); Cuno, supra, at ___, 126 S.Ct., at 1865 (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, 102 S. Ct. 752 (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 (C.A.D.C.1988); In re United States Catholic Conference, 885 F.2d 1020, 1028 (C.A.2 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, 94 S. Ct. 2940. 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, 88 S. Ct. 1942. 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 actionbe it a conference, proclamation or speechto 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, 88 S. Ct. 1942. 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-á-vis the other branches, concrete adverseness or not." Lewis v. Casey, 518 U.S. 343, 353, n. 3, 116 S. Ct. 2174, 135 L. Ed. 2d 606 (1996); see also Valley Forge, 454 U.S., at 471, 102 S. Ct. 752. Respondents' 2570 position, if adopted, would repeat and compound this mistake. The constitutional requirements for federal-court jurisdictionincluding 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, 118 S. Ct. 1003, 140 L. Ed. 2d 210 (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, 94 S. Ct. 2940 (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 ___, 126 S.Ct., at 1865 (quoting Flast, supra, at 106, 88 S. Ct. 1942), and would "open the Judiciary to an arguable charge of providing `government by injunction,'" Schlesinger, 418 U.S., at 222, 94 S. Ct. 2925. 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, 104 S. Ct. 3315 (quoting Laird v. Tatum, 408 U.S. 1, 15, 92 S. Ct. 2318, 33 L. Ed. 2d 154 (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 literallyi.e., that any marginal cost greater than zero sufficestaxpayers 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 2571 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, 43 S. Ct. 597. 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 2572 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 2573-2574 (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, 88 S. Ct. 1942, 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.	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 we recognized a narrow exception to the general rule against federal taxpayer standing. Under 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 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 is correct. We hold that it is not. We therefore reverse the decision of the Court of Appeals. I A In 001, 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 75 (001 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." The office was specifically charged with the task of eliminating unnecessary bureaucratic, legislative, and regulatory barriers that could impede such organizations' 560 effectiveness and ability to compete equally for federal assistance. By separate executive orders, the President also created Executive Department Centers for Faith-Based and Community Initiatives within several federal agencies and departments.[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. 13, (f), p. 60 (00 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," (c), at 60, 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," (d), at 60. 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, 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. 1 online at http://www.gao.gov/new. items/d06616.pdf (as visited June 5, 007, and available in Clerk of Court's case file); see also Amended Complaint in No. 04-C-381-S (WD Wis.), ¶ 3, App. to Pet. for Cert. 71a-7a. B The respondents are Freedom From Religion Foundation, Inc., a nonstock corporation "opposed to government endorsement of religion," 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." 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 561 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." 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." App. to Pet. for Cert. 69a; see also 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 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 App. to Pet. for Cert. 7a-35a. It concluded that under 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 ). 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 App. to Pet. for Cert. 33a-34a. A divided panel of the United States Court of Appeals for the Seventh Circuit reversed. The majority read 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." F.3d, at 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." 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 tax-paying public of the alleged violation of the establishment clause" is greater than "zero." In dissent, Judge Ripple opined that the majority's decision reflected a "dramatic expansion of current standing doctrine," at that "cuts the concept of taxpayer standing loose from its moorings," Noting that "[t]he executive can do nothing without general budget appropriations from Congress," he criticized the majority for overstepping '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," F.3d, The Court of Appeals denied en banc review by a vote of seven to four. 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." We granted certiorari to 56 resolve this question, 549 U.S. 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 "`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.'" 51 U.S. 8, 7 S. Ct. 31, (1) "[O]ne of the controlling elements in the definition of a case or controversy under Article III" is standing. 109 S. Ct. 0, 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." 468 U.S. 7, 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." at 109 S. Ct. 0 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 Christian 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," 1 Cranch 1, 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 ). 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 563 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., 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." 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." 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." ; see also Alabama Power 8 L. Ed. 4 In 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." 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 564 benefits him than it does the public at largedoes not state an Article III case or controversy." S. Ct. 130, 9 L. Ed. d 351[] C In 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 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." 39 U.S., -103, The Court held that the taxpayer-plaintiff in 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 565 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." III A Respondents argue that this case falls within the exception, which they read to cover any "expenditure of government funds in violation of the Establishment " Brief for Respondents 1. But this broad reading fails to observe "the rigor with which the exception to the Frothingham principle ought to be applied." Valley The expenditures at issue in 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, That Act expressly appropriated the sum of $100 million for fiscal year 1966, 01(b), and authorized the disbursement of those funds to local educational agencies for the education of low-income students, see 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, -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," 03(a)(3)(B), at The expenditures challenged in 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.[3] Indeed, the 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.'" And the judgment reviewed by this Court in 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. v. Gardner, Given that the alleged Establishment Clause violation in 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 566 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." But as this Court later noted, "limited taxpayer standing to challenges directed `only [at] exercises of congressional power'" under the Taxing and Spending Valley B The link between congressional action and constitutional violation that supported taxpayer standing in 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.[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 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." In fact, the connection to congressional action was closer in Valley 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. Nevertheless, we found that the plaintiffs lacked standing because "limited taxpayer standing to challenges directed `only [at] exercises of congressional power'" under the Taxing and Spending (quoting ).[5] Similarly, in 418 U.S. 08, 94 S. Ct. 95, 41 L. Ed. d 706 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 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 8, 94 S. Ct. 95. This was the case even though the plaintiffs sought to reclaim reservist pay received by those Memberspay 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 567 authorizing pay to those who lawfully were Reservists." n. 17. See also United 94 S. Ct. 940, 41 L. Ed. d 678 (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"). 108 S. Ct. 56, L. Ed. d 50 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. at 60, 619, 108 S. Ct. 56. 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." at 619-60, 108 S. Ct. 56 (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 108 S. Ct. 56; see also at 63, 108 S. Ct. 56 (O'Connor, J., concurring) (noting the "partnership between governmental and religious institutions contemplated by the AFLA").[6] Unlike this case, involved a "program of disbursement of funds pursuant to Congress' taxing and spending powers" that "Congress had created," "authorized," and "mandate[d]." at 619-60, 108 S. Ct. 56. Respondents attempt to paint their lawsuit as a -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 Branchthe allocation of which "is a[n] administrative decision traditionally regarded as committed to agency discretion." 508 U.S. 18, 19, 3 S. Ct. 04, 14 L. Ed. d 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 568 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.[7] In short, this case falls outside the "the narrow exception" that "created to the general rule against taxpayer standing established in Frothingham." 108 S. Ct. 56. 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 and thus lacks the requisite "logical nexus" between taxpayer status "and the type of legislative enactment attacked." 39 U.S., 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 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." F.3d, But focused on congressional action, and we must decline this invitation to extend its holding to encompass discretionary Executive Branch expenditures. itself distinguished the "incidental expenditure of tax funds in the administration of an essentially regulatory statute," 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 at 484, n. 0, Moreover, we have repeatedly emphasized that the exception has a "narrow application in our precedent," 547 U.S., at 16 S.Ct., at 1865, that only "slightly lowered" the bar on taxpayer standing, 94 S. Ct. 940, and that must be applied with "rigor," Valley It is significant that, in the four decades since its creation, the exception has 569 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 See Tilton v. 403 U.S. 67, 91 S. Ct. 091, 9 L. Ed. d 790 ; 418 U.S., at 94 S. Ct. 940 (no taxpayer standing to sue under Statement and Account Clause of Art. I); 418 U.S., at 8, 94 S. Ct. 95 (no taxpayer standing to sue under Incompatibility Clause of Art. I); at 16 S.Ct., at 1865 We have similarly refused to extend to permit taxpayer standing for Establishment Clause challenges that do not implicate Congress' taxing and spending power. See Valley at 479-48, (no taxpayer standing to challenge Executive Branch action taken pursuant to Property Clause of Art. IV); see also District of Columbia Common 858 F.d 1, ; In re United States Catholic Conference, 885 F.d 100, 108 In effect, we have adopted the position set forth by Justice Powell in his concurrence in 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" 94 S. Ct. 940. While respondents argue that Executive Branch expenditures in support of religion are no different from legislative extractions, 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." 39 U.S., Because almost all Executive Branch activity is ultimately funded by some congressional appropriation, extending the exception to purely executive expenditures would effectively subject every federal actionbe it a conference, proclamation or speechto 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 App. to Pet. for Cert. 73a (challenging Executive Branch officials' "support of national and regional conferences"); App. to Pet. for Cert. 73a-75a (challenging content of speech by Secretary of Education); App. to Pet. for Cert. 76a (challenging content of Presidential speeches); App. to Pet. for Cert. 77a (challenging Executive Branch officials' "public appearances" and "speeches"). Such a broad reading would ignore the first prong of 's standing test, which requires "a logical link between [taxpayer] status and the type of legislative enactment attacked." 39 U.S., It would also raise serious separation-of-powers concerns. As we have recognized, 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, "failed to recognize that this doctrine has a separation-of-powers component, which keeps courts within certain traditional bounds vis-á-vis the other branches, concrete adverseness or not." 6 S. Ct. 174, 135 L. Ed. d 606 ; see also Valley 454 U.S., at Respondents' 570 position, if adopted, would repeat and compound this mistake. The constitutional requirements for federal-court jurisdictionincluding the standing requirements and Article III "are an essential ingredient of separation and equilibration of powers." Steel 53 U.S. 83, 8 S. Ct. 1003, 140 L. Ed. d 10 "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." 94 S. Ct. 940 (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 's own promise that it would not transform federal courts into forums for taxpayers' `generalized grievances'" about the conduct of government, 547 U.S., at 16 S.Ct., at 1865 (quoting ), and would "open the Judiciary to an arguable charge of providing `government by injunction,'" 418 U.S., at 94 S. Ct. 95. 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." (quoting 9 S. Ct. 318, 33 L. Ed. d 4 (197)). 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." F.3d, 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." 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. But if we take the Court of Appeals' test literallyi.e., that any marginal cost greater than zero sufficestaxpayers 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." -990 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 571 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 would be manageable because they would require that a challenged expenditure be "fairly traceable to the conduct alleged to violate the Establishment " 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." at 1. 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. at 0, 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." 6 U.S., B Respondents set out a parade of horribles that they claim could occur if 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 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, 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 ; it extended 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 and it is the approach we take here. We do not extend 57 but we also do not overrule it. We leave as we found it. Justice SCALIA says that we must either overrule 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 573-574 (opinion concurring in judgment). But it is wrong. Justice SCALIA does not seriously dispute either (1) that itself spoke in terms of "legislative enactment[s]" and "exercises of congressional power," 39 U.S., or () that in the four decades since 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.	2,061
Justice Kennedy	concurring	false	Hein v. Freedom From Religion Foundation, Inc.	2007-06-25	null	https://www.courtlistener.com/opinion/145704/hein-v-freedom-from-religion-foundation-inc/	https://www.courtlistener.com/api/rest/v3/clusters/145704/	2,007	2006-071	1	5	4	The separation-of-powers design in the Constitution is implemented, among other means, by Article III's case-or-controversy limitation and the resulting requirement of standing. See, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-560, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992). The Court's decision in Flast v. Cohen, 392 U.S. 83, 88 S. Ct. 1942, 20 L. Ed. 2d 947 (1968), and in later cases applying it, must be interpreted as respecting separation-of-powers principles but acknowledging as well that these principles, in some cases, must accommodate the First Amendment's Establishment Clause. The clause expresses the Constitution's special concern that freedom of conscience not be compromised by government taxing and spending in support of religion. In my view the result reached in Flast is correct and should not be called into question. For the reasons set forth by Justice ALITO, however, Flast should not be extended to permit taxpayer standing in the instant matter. And I join his opinion in full. Respondents' amended complaint challenged the religious nature of national and regional conferences that promoted President Bush's Faith-Based and Community Initiatives. See App. to Pet. for Cert. 73a-77a. To support the allegation respondents pointed to speeches given by the President and other executive officers, speeches with religious references. Id., at 73a-76a. The complaint relies on respondents' taxpayer status as the sole basis for standing to maintain the suit but points to no specific use of Congress' taxing and spending power other than general appropriations to fund the administration of the Executive Branch. Id., at 71a-73a. Flast established a "narrow exception" to the rule against taxpayer standing. Bowen v. Kendrick, 487 U.S. 589, 618, 108 S. Ct. 2562, 101 L. Ed. 2d 520 (1988). To find standing in the circumstances of this case would make the narrow exception boundless. The public events and public speeches respondents seek to call in question are part of the open discussion essential to democratic self-government. The Executive Branch should be free, as a general matter, to discover new ideas, to understand pressing public demands, and to find creative responses to address governmental concerns. The exchange of ideas between and among the State and Federal Governments and their manifold, diverse constituencies sustains a free society. Permitting any and all taxpayers to challenge the content of these prototypical executive operations and dialogues would 2573 lead to judicial intervention so far exceeding traditional boundaries on the Judiciary that there would arise a real danger of judicial oversight of executive duties. The burden of discovery to ascertain if relief is justified in these potentially innumerable cases would risk altering the free exchange of ideas and information. And were this constant supervision to take place the courts would soon assume the role of speech editors for communications issued by executive officials and event planners for meetings they hold. The courts must be reluctant to expand their authority by requiring intrusive and unremitting judicial management of the way the Executive Branch performs its duties. The Court has refused to establish a constitutional rule that would require or allow "permanent judicial intervention in the conduct of governmental operations to a degree inconsistent with sound principles of federalism and the separation of powers." Garcetti v. Ceballos, 547 U.S. ___, ___, 126 S. Ct. 1951, 1961, 164 L. Ed. 2d 689 (2006); see also Cheney v. United States Dist. Court for D.C., 542 U.S. 367, 382, 124 S. Ct. 2576, 159 L. Ed. 2d 459 (2004) (noting that "separation-of-powers considerations should inform a court of appeals' evaluation of a mandamus petition involving the President or the Vice President" and that "mandamus standards are broad enough... to prevent a lower court from interfering with a coequal branch's ability to discharge its constitutional responsibilities"). In the Article III context the Court explained that concerns based on separation of powers "counsel[ed] against recognizing standing in a case brought ... to seek a restructuring of the apparatus established by the Executive Branch to fulfill its legal duties." Allen v. Wright, 468 U.S. 737, 761, 104 S. Ct. 3315, 82 L. Ed. 2d 556 (1984). The same principle applies here. The Court should not authorize the constant intrusion upon the executive realm that would result from granting taxpayer standing in the instant case. As JUSTICE ALITO explains in detail, the Court's precedents do not require it to do so. The separation-of-powers concerns implicated by intrusive judicial regulation of day-to-day executive operations reinforce his interpretation of Flast's framework. Cf. Allen, supra, at 761, n. 26, 104 S. Ct. 3315 (relying "on separation of powers principles to interpret the `fairly traceable' component of the standing requirement"). It must be remembered that, even where parties have no standing to sue, members of the Legislative and Executive Branches are not excused from making constitutional determinations in the regular course of their duties. Government officials must make a conscious decision to obey the Constitution whether or not their acts can be challenged in a court of law and then must conform their actions to these principled determinations. Justice SCALIA, with whom Justice THOMAS joins, concurring in the judgment. Today's opinion is, in one significant respect, entirely consistent with our previous cases addressing taxpayer standing to raise Establishment Clause challenges to government expenditures. Unfortunately, the consistency lies in the creation of utterly meaningless distinctions which separate the case at hand from the precedents that have come out differently, but which cannot possibly be (in any sane world) the reason it comes out differently. If this Court is to decide cases by rule of law rather than show of hands, we must surrender to logic and choose sides: Either Flast v. Cohen, 392 U.S. 83, 88 S. Ct. 1942, 20 L. Ed. 2d 947 (1968), should be applied to (at a minimum) all challenges to the governmental expenditure of general tax revenues 2574 in a manner alleged to violate a constitutional provision specifically limiting the taxing and spending power, or Flast should be repudiated. For me, the choice is easy. Flast is wholly irreconcilable with the Article III restrictions on federal-court jurisdiction that this Court has repeatedly confirmed are embodied in the doctrine of standing. I A There is a simple reason why our taxpayer-standing cases involving Establishment Clause challenges to government expenditures are notoriously inconsistent: We have inconsistently described the first element of the "irreducible constitutional minimum of standing," which minimum consists of (1) a "concrete and particularized" "`injury in fact'" that is (2) fairly traceable to the defendant's alleged unlawful conduct and (3) likely to be redressed by a favorable decision. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992). We have alternately relied on two entirely distinct conceptions of injury in fact, which for convenience I will call "Wallet Injury" and "Psychic Injury." Wallet Injury is the type of concrete and particularized injury one would expect to be asserted in a taxpayer suit, namely, a claim that the plaintiff's tax liability is higher than it would be, but for the allegedly unlawful government action. The stumbling block for suits challenging government expenditures based on this conventional type of injury is quite predictable. The plaintiff cannot satisfy the traceability and redressability prongs of standing. It is uncertain what the plaintiff's tax bill would have been had the allegedly forbidden expenditure not been made, and it is even more speculative whether the government will, in response to an adverse court decision, lower taxes rather than spend the funds in some other manner. Psychic Injury, on the other hand, has nothing to do with the plaintiff's tax liability. Instead, the injury consists of the taxpayer's mental displeasure that money extracted from him is being spent in an unlawful manner. This shift in focus eliminates traceability and redressability problems. Psychic Injury is directly traceable to the improper use of taxpayer funds, and it is redressed when the improper use is enjoined, regardless of whether that injunction affects the taxpayer's purse. Flast and the cases following its teaching have invoked a peculiarly restricted version of Psychic Injury, permitting taxpayer displeasure over unconstitutional spending to support standing only if the constitutional provision allegedly violated is a specific limitation on the taxing and spending power. Restricted or not, this conceptualizing of injury in fact in purely mental terms conflicts squarely with the familiar proposition that a plaintiff lacks a concrete and particularized injury when his only complaint is the generalized grievance that the law is being violated. As we reaffirmed unanimously just this Term: "`We have consistently held that a plaintiff raising only a generally available grievance about governmentclaiming 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 largedoes not state an Article III case or controversy.'" Lance v. Coffman, 549 U.S. ___, ___, 127 S. Ct. 1194, 1196, 167 L. Ed. 2d 29 (2007) (per curiam) (quoting Lujan, supra, at 573-574, 112 S. Ct. 2130). As the following review of our cases demonstrates, we initially denied taxpayer standing based on Wallet Injury, but then 2575 found standing in some later cases based on the limited version of Psychic Injury described above. The basic logical flaw in our cases is thus twofold: We have never explained why Psychic Injury was insufficient in the cases in which standing was denied, and we have never explained why Psychic Injury, however limited, is cognizable under Article III. B 1 Two pre-Flast cases are of critical importance. In Frothingham v. Mellon, decided with Massachusetts v. Mellon, 262 U.S. 447, 43 S. Ct. 597, 67 L. Ed. 1078 (1923), the taxpayer challenged the constitutionality of the Maternity Act of 1921, alleging in part that the federal funding provided by the Act was not authorized by any provision of the Constitution. See id., at 476-477, 43 S. Ct. 597 (argument for Frothingham), 479-480 (opinion of the Court). The Court held that the taxpayer lacked standing. After emphasizing that "the effect upon future taxation ... of any payment out of [Treasury] funds" was "remote, fluctuating and uncertain," Frothingham, 262 U.S., at 487, 43 S. Ct. 597, the Court concluded that "[t]he 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," id., at 488, 43 S. Ct. 597. The Court was thus describing the traceability and redressability problems with Wallet Injury, and rejecting Psychic Injury as a generalized grievance rather than concrete and particularized harm. The second significant pre-Flast case is Doremus v. Board of Ed. of Hawthorne, 342 U.S. 429, 72 S. Ct. 394, 96 L. Ed. 475 (1952). There the taxpayers challenged under the Establishment Clause a state law requiring public-school teachers to read the Bible at the beginning of each school day. Id., at 430, 433, 72 S. Ct. 394.[1] Relying extensively on Frothingham, the Court denied standing. After first emphasizing that there was no allegation that the Bible reading increased the plaintiffs' taxes or the cost of running the schools, 342 U.S., at 433, 72 S. Ct. 394, and then reaffirming that taxpayers must allege more than an indefinite injury suffered in common with people generally, id., at 434, 72 S. Ct. 394, the Court concluded that the "grievance which [the plaintiffs] sought to litigate here is not a direct dollars-and-cents injury but is a religious difference," ibid. In addition to reiterating Frothingham's description of the unavoidable obstacles to recovery under a taxpayer theory of Wallet Injury, Doremus rejected Psychic Injury in unmistakable terms. The opinion's deprecation of a mere "religious difference," in contrast to a real "dollars-and-cents injury," can only be understood as a flat denial of standing supported only by taxpayer disapproval of the unconstitutional use of tax funds. If the Court had thought that Psychic Injury was a permissible basis for standing, it should have sufficed (as the dissenting Justices in Doremus suggested, see 342 U.S., at 435, 72 S. Ct. 394 (opinion of Douglas, J.)) that 2576 public employees were being paid in part to violate the Establishment Clause. 2 Sixteen years after Doremus, the Court took a pivotal turn. In Flast v. Cohen, 392 U.S. 83, 88 S. Ct. 1942, 20 L. Ed. 2d 947 (1968), taxpayers challenged the Elementary and Secondary Education Act of 1965, alleging that funds expended pursuant to the Act were being used to support parochial schools. Id., at 85-87, 88 S. Ct. 1942. They argued that either the Act itself proscribed such expenditures or that the Act violated the Establishment Clause. Id., at 87, 90, 88 S. Ct. 1942. The Court held that the taxpayers had standing. Purportedly in order to determine whether taxpayers have the "personal stake and interest" necessary to satisfy Article III, a two-pronged nexus test was invented. Id., at 101-102, 88 S. Ct. 1942. The first prong required the taxpayer to "establish a logical link between [taxpayer] status and the type of legislative enactment." Id., at 102, 88 S. Ct. 1942. The Court described what that meant as follows: "[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. This requirement is consistent with the limitation imposed upon state-taxpayer standing in federal courts in Doremus...." Ibid. The second prong required the taxpayer to "establish a nexus between [taxpayer] status and the precise nature of the constitutional infringement alleged." Ibid. The Court elaborated that this required "the taxpayer [to] 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." Id., at 102-103, 88 S. Ct. 1942. The Court held that the Establishment Clause was the type of specific limitation on the taxing and spending power that it had in mind because "one of the specific evils feared by" the Framers of that Clause was that the taxing and spending power would be used to favor one religion over another or to support religion generally. Id., at 103-104, 88 S. Ct. 1942 (relying exclusively upon Madison's famous Memorial and Remonstrance Against Religious Assessments). Because both prongs of its newly minted two-part test were satisfied, Flast held that the taxpayers had standing. Wallet Injury could not possibly have been the basis for this conclusion, since the taxpayers in Flast were no more able to prove that success on the merits would reduce their tax burden than was the taxpayer in Frothingham. Thus, Flast relied on Psychic Injury to support standing, describing the "injury" as the taxpayer's allegation that "his tax money is being extracted and spent in violation of specific constitutional protections against such abuses of legislative power." 392 U.S., at 106, 88 S. Ct. 1942. But that created a problem: If the taxpayers in Flast had standing based on Psychic Injury, and without regard to the effect of the litigation on their ultimate tax liability, why did not the taxpayers in Doremus and Frothingham have standing on a similar basis? Enter the magical two-pronged nexus test. It has often been pointed out, and never refuted, that the criteria in Flast's two-part test are entirely unrelated to the purported goal of ensuring that the plaintiff has a sufficient 2577 "stake in the outcome of the controversy." See Flast, 392 U.S., at 121-124, 88 S. Ct. 1942 (Harlan, J., dissenting); see also id., at 107, 88 S. Ct. 1942 (Douglas, J., concurring); United States v. Richardson, 418 U.S. 166, 183, 94 S. Ct. 2940, 41 L. Ed. 2d 678 (1974) (Powell, J., concurring). In truth, the test was designed for a quite different goal. Each prong was meant to disqualify from standing one of the two prior cases that would otherwise contradict the holding of Flast. The first prong distinguished Doremus as involving a challenge to an "incidental expenditure of tax funds in the administration of an essentially regulatory statute," rather than a challenge to a taxing and spending statute. See 392 U.S., at 102, 88 S. Ct. 1942. Did the Court proffer any reason why a taxpayer's Psychic Injury is less concrete and particularized, traceable, or redressable when the challenged expenditures are incidental to an essentially regulatory statute (whatever that means)? Not at all. Doremus had to be evaded, and so it was. In reality, of course, there is simply no material difference between Flast and Doremus as far as Psychic Injury is concerned: If taxpayers upset with the government's giving money to parochial schools had standing to sue, so should the taxpayers who disapproved of the government's paying public-school teachers to read the Bible.[2] Flast's dispatching of Frothingham via the second prong of the nexus test was only marginally less disingenuous. Not only does the relationship of the allegedly violated provision to the taxing and spending power have no bearing upon the concreteness or particularity of the Psychic Injury, see Part III, infra, but the existence of that relationship does not even genuinely distinguish Flast from Frothingham. It is impossible to maintain that the Establishment Clause is a more direct limitation on the taxing and spending power than the constitutional limitation invoked in Frothingham, which is contained within the very provision creating the power to tax and spend. Article I, § 8, cl. 1, provides: "The Congress shall have Power To lay and collect Taxes ..., to pay the Debts and provide for the common Defence and general Welfare of the United States." (Emphasis added.) Though unmentioned in Flast, it was precisely this limitation upon the permissible purposes of taxing and spending upon which Mrs. Frothingham relied. See, e.g., Brief for Appellant in Frothingham, O.T.1922, No. 962, p. 68 ("[T]he words `provide for the common defence and general welfare of the United States' are used as limitations on the taxing power"); id., at 26-81 (discussing the general welfare limitation at length). 3 Coherence and candor have fared no better in our later taxpayer-standing cases. The three of them containing lengthy discussion of the Establishment Clause warrant analysis. Flast was dismissively and unpersuasively distinguished just 13 years later in Valley Forge Christian College v. Americans 2578 United for Separation of Church and State, Inc., 454 U.S. 464, 102 S. Ct. 752, 70 L. Ed. 2d 700 (1982). The taxpayers there challenged the decision of the Department of Health, Education, and Welfare to give a 77-acre tract of Government property, worth over half a million dollars, to a religious organization. Id., at 468, 102 S. Ct. 752. The Court, adhering to the strict letter of Flast's two-pronged nexus test, held that the taxpayers lacked standing. Flast's first prong was not satisfied: Rather than challenging a congressional taxing and spending statute, the plaintiffs were attacking an agency decision to transfer federal property pursuant to Congress's power under the Property Clause, Art. IV, § 3, cl. 2. 454 U.S., at 479-480, 102 S. Ct. 752. In distinguishing between the Spending Clause and the Property Clause, Valley Forge achieved the seemingly impossible: It surpassed the high bar for irrationality set by Flast's distinguishing of Doremus and Frothingham. Like the dissenters in Valley Forge, see 454 U.S., at 511-512, 102 S. Ct. 752 (opinion of Brennan, J.); id., at 513-514, 102 S. Ct. 752 (opinion of STEVENS, J.), I cannot fathom why Article III standing should turn on whether the government enables a religious organization to obtain real estate by giving it a check drawn from general tax revenues or instead by buying the property itself and then transferring title. While Valley Forge's application of the first prong to distinguish Flast was unpersuasive, the Court was at least not trying to hide the ball. Its holding was forthrightly based on a resounding rejection of the very concept of Psychic Injury: "[Plaintiffs] fail to identify any personal injury suffered by them as a consequence of the alleged constitutional error, other than the psychological consequence presumably produced by observation of conduct with which one disagrees. That is not an injury sufficient to confer standing under Art. III, even though the disagreement is phrased in constitutional terms. It is evident that respondents are firmly committed to the constitutional principle of separation of church and State, but standing is not measured by the intensity of the litigant's interest or the fervor of his advocacy." 454 U.S., at 485-486, 102 S. Ct. 752 (emphasis omitted). Of course, in keeping with what was to become the shameful tradition of our taxpayer-standing cases, the Court's candor about the inadequacy of Psychic Injury was combined with a notable silence as to why Flast itself was not doomed. A mere six years later, Flast was resuscitated in Bowen v. Kendrick, 487 U.S. 589, 108 S. Ct. 2562, 101 L. Ed. 2d 520 (1988). The taxpayers there brought facial and as-applied Establishment Clause challenges to the Adolescent Family Life Act (AFLA), which was a congressional scheme that provided grants to public or nonprofit private organizations to combat premarital adolescent pregnancy and sex. Id., at 593, 108 S. Ct. 2562. The as-applied challenge focused on whether particular grantees selected by the Secretary of Health and Human Services were constitutionally permissible recipients. Id., at 620-622, 108 S. Ct. 2562. The Solicitor General argued that, under Valley Forge's application of Flast's first prong, the taxpayers lacked standing for their as-applied claim because that claim was really a challenge to executive decisionmaking, not to Congress's exercise of its taxing and spending power. 487 U.S., at 618-619, 108 S. Ct. 2562. The Court rejected this contention, holding that the taxpayers' as-applied claim was still a challenge to Congress's taxing and spending power even 2579 though disbursement of the funds authorized by Congress had been administered by the Secretary. Id., at 619, 108 S. Ct. 2562. Kendrick, like Flast before it, was obviously based on Psychic Injury: The taxpayers could not possibly make, and did not attempt to make, the showing required for Wallet Injury. But by relying on Psychic Injury, Kendrick perfectly revealed the incompatibility of that concept with the outcome in Doremus. Just as Kendrick did not care whether the appropriated funds would have been spent anyway given to a different, permissible recipient so also Doremus should not have cared that the teachers would likely receive the same salary once their classroom activities were limited to secular conduct. Flast and Kendrick's acceptance of Psychic Injury is fundamentally at odds with Frothingham, Doremus, and Valley Forge. Which brings me to the final case worthy of mention. Last Term, in DaimlerChrysler Corp. v. Cuno, 547 U.S. ___, 126 S. Ct. 1854, 164 L. Ed. 2d 589 (2006), we concisely confirmed that Flast was based on Psychic Injury. The taxpayers in that case sought to rely on Flast to raise a Commerce Clause challenge to a state franchise tax credit. 547 U.S., at ___, 126 S.Ct., at 1864. In rejecting the analogy and denying standing, we described Flast as follows: "The Court ... understood the `injury' alleged in Establishment Clause challenges to federal spending to be the very `extract[ion] and spen[ding]' of `tax money' in aid of religion alleged by a plaintiff. And an injunction against the spending would of course redress that injury, regardless of whether lawmakers would dispose of the savings in a way that would benefit the taxpayer-plaintiffs personally." 547 U.S., at ___, 126 S.Ct., at 1865 (citation omitted; some alterations in original). What Cuno's conceptualization of Flast reveals is that there are only two logical routes available to this Court. We must initially decide whether Psychic Injury is consistent with Article III. If it is, we should apply Flast to all challenges to government expenditures in violation of constitutional provisions that specifically limit the taxing and spending power; if it is not, we should overturn Flast. II A The plurality today avails itself of neither principled option. Instead, essentially accepting the Solicitor General's primary submission, it limits Flast to challenges to expenditures that are "expressly authorized or mandated by ... specific congressional enactment." Ante, at 2568. It offers no intellectual justification for this limitation, except that "[i]t is a necessary concomitant of the doctrine of stare decisis that a precedent is not always expanded to the limit of its logic." Ante, at 2571. That is true enough, but since courts purport to be engaged in reasoned decisionmaking, it is only true when (1) the precedent's logic is seen to require narrowing or readjustment in light of relevant distinctions that the new fact situation brings to the fore; or (2) its logic is fundamentally flawed, and so deserves to be limited to the facts that begot it. Today's plurality claims neither of these justifications. As to the first, the plurality offers no explanation of why the factual differences between this case and Flast are material. It virtually admits that express congressional allocation vel non has nothing to do with whether the plaintiffs have alleged an injury in fact that is fairly traceable and likely to be redressed. See ante, at 2580 2568-2569. As the dissent correctly contends and I shall not belabor, see post, at 2585-2586 (opinion of SOUTER, J.), Flast is indistinguishable from this case for purposes of Article III. Whether the challenged government expenditure is expressly allocated by a specific congressional enactment has absolutely no relevance to the Article III criteria of injury in fact, traceability, and redressability. Yet the plurality is also unwilling to acknowledge that the logic of Flast (its Psychic Injury rationale) is simply wrong, and for that reason should not be extended to other cases. Despite the lack of acknowledgment, however, that is the only plausible explanation for the plurality's indifference to whether the "distinguishing" fact is legally material, and for its determination to limit Flast to its "`resul[t],'" ante, at 2568-2569.[3] Why, then, pick a distinguishing fact that may breathe life into Flast in future cases, preserving the disreputable disarray of our Establishment Clause standing jurisprudence? Why not hold that only taxpayers raising Establishment Clause challenges to expenditures pursuant to the Elementary and Secondary Education Act of 1965 have standing? That, I suppose, would be too obvious a repudiation of Flast, and thus an impediment to the plurality's pose of minimalism. Because the express-allocation line has no mooring to our tripartite test for Article III standing, it invites demonstrably absurd results. For example, the plurality would deny standing to a taxpayer challenging the President's disbursement to a religious organization of a discrete appropriation that Congress had not explicitly allocated to that purpose, even if everyone knew that Congress and the President had informally negotiated that the entire sum would be spent in that precise manner. See ante, at 2568, n. 7 (holding that nonstatutory earmarks are insufficient to satisfy the express-allocation requirement). And taxpayers should lack standing to bring Establishment Clause challenges to the Executive Branch's use of appropriated funds when those expenditures have the added vice of violating congressional restrictions. If, for example, Congress instructs the President to disburse grants to hospitals that he deems worthy, and the President instead gives all of the money to the Catholic Church, "[t]he link between congressional action and constitutional violation that supported taxpayer standing in Flast [would be] missing." Ante, at 2565-2566. Indeed, taking the plurality at its word, Congress could insulate the President from all Flast-based suits by codifying the truism that no appropriation can be spent by the Executive Branch in a manner that violates the Establishment Clause. Any last pretense of minimalismof adhering to prior law but merely declining to "extend" itis swept away by the fact that the Court's holding flatly contradicts Kendrick. The whole point of the as-applied challenge in Kendrick was that the Secretary, not Congress, had chosen inappropriate grant recipients. 487 U.S., at 620-622, 108 S. Ct. 2562. Both Kendrick and this case equally involve, in the relevant 2581 sense, attacks on executive discretion rather than congressional decision: Congress generally authorized the spending of tax funds for certain purposes but did not explicitly mandate that they be spent in the unconstitutional manner challenged by the taxpayers. I thus share the dissent's bewilderment, see post, at 2586-2587 (opinion of SOUTER, J.), as to why the plurality fixates on the amount of additional discretion the Executive Branch enjoys under the law beyond the only discretion relevant to the Establishment Clause issue: whether to spend taxpayer funds for a purpose that is unconstitutional. See ante, at 2572 (focusing on whether the case involves "a purely discretionary Executive Branch expenditure" (emphasis added)). B While I have been critical of the Members of the plurality, I by no means wish to give the impression that respondents' legal position is any more coherent. Respondents argue that Flast did not turn on whether Congress has expressly allocated the funds to the allegedly unconstitutional use, and their case plainly rests on Psychic Injury. They repeatedly emphasize that the injury in Flast was merely the governmental extraction and spending of tax money in aid of religion. See, e.g., Brief for Respondents 28. Respondents refuse to admit that their argument logically implies, for the reasons already discussed, that every expenditure of tax revenues that is alleged to violate the Establishment Clause is subject to suit under Flast. Of course, such a concession would run headlong into the denial of standing in Doremus. Respondents' only answer to Doremus is the cryptic assertion that the injury there was not fairly traceable to the unconstitutional conduct. Brief for Respondents 21, and n. 7. This makes no sense. On Flast's theory of Psychic Injury, the injury in Doremus was perfectly traceable and not in any way attenuated. It consisted of the psychic frustration that tax funds were being used in violation of the Establishment Clause, which was directly caused by the paying of teachers to read the Bible, and which would have been remedied by prohibition of that expenditure.[4] The hollowness of respondents' traceability argument is perhaps best demonstrated by their counsel's game submission at oral argument that there would be standing to challenge the hiring of a single Secret Service agent who guarded the President during religious trips, but no standing if those responsibilities (and the corresponding taxpayer-funded compensation) were spread out over the entire Secret Service protective detail. Tr. of Oral Arg. 38-39. The logical consequence of respondents' position finds no support in this Court's precedents or our Nation's history. Any taxpayer would be able to sue whenever tax funds were used in alleged violation of the Establishment Clause. So, for example, any taxpayer could challenge the fact that the Marshal of our Court is paid, in part, to call the courtroom to order by proclaiming "God Save the United States and this Honorable Court." As much as respondents wish to deny that this is what Flast logically entails, it blinks reality to conclude otherwise. If respondents are to 2582 prevail, they must endorse a future in which ideologically motivated taxpayers could "roam the country in search of governmental wrongdoing and ... reveal their discoveries in federal court," transforming those courts into "ombudsmen of the general welfare" with respect to Establishment Clause issues. Valley Forge, 454 U.S., at 487, 102 S. Ct. 752. C Ultimately, the arguments by the parties in this case and the opinions of my colleagues serve only to confirm that Flast's adoption of Psychic Injury has to be addressed head-on. Minimalism is an admirable judicial trait, but not when it comes at the cost of meaningless and disingenuous distinctions that hold the sure promise of engendering further meaningless and disingenuous distinctions in the future. The rule of law is ill served by forcing lawyers and judges to make arguments that deaden the soul of the law, which is logic and reason. Either Flast was correct, and must be accorded the wide application that it logically dictates, or it was not, and must be abandoned in its entirety. I turn, finally, to that question. III Is a taxpayer's purely psychological displeasure that his funds are being spent in an allegedly unlawful manner ever sufficiently concrete and particularized to support Article III standing? The answer is plainly no. As I noted at the outset, Lujan explained that the "consisten[t]" view of this Court has been that "a plaintiff raising only a generally available grievance about governmentclaiming 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 largedoes not state an Article III case or controversy." 504 U.S., at 573-574, 112 S. Ct. 2130. As evidence of the consistency with which we have affirmed that understanding, Lujan relied on the reasoning in Frothingham, and in several other cases, including Ex parte Levitt, 302 U.S. 633, 58 S. Ct. 1, 82 L. Ed. 493 (1937) (dismissing suit challenging Justice Black's appointment to this Court in alleged violation of the Ineligibility Clause, Art. I, § 6, cl. 2), United States v. Richardson, 418 U.S. 166, 94 S. Ct. 2940, 41 L. Ed. 2d 678 (1974) (denying standing to challenge the Government's failure to disclose the CIA's expenditures in alleged violation of the Accounts Clause, Art. I, § 9, cl. 7), and Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 94 S. Ct. 2925, 41 L. Ed. 2d 706 (1974) (rejecting challenge to Members of Congress holding commissions in the military Reserves in alleged violation of the Incompatibility Clause, Art. I, § 6, cl. 2). See 504 U.S., at 573-577, 112 S. Ct. 2130. Just this Term, relying on precisely the same cases and the same reasoning, we held unanimously that suits raising only generalized grievances do not satisfy Article III's requirement that the injury in fact be concrete and particularized. See Lance, 549 U.S., at ___, 127 S.Ct., at 1196-1197.[5] Nor does Flast's limitation on Psychic Injurythe limitation that it suffices only when the two-pronged "nexus" test is 2583 metcure the Article III deficiency. The fact that it is the alleged violation of a specific constitutional limit on the taxing and spending power that produces the tax-payer's mental angst does not change the fundamental flaw. It remains the case that the taxpayer seeks "relief that no more directly and tangibly benefits him than it does the public at large." Lujan, supra, at 573-574, 112 S. Ct. 2130. And it is of no conceivable relevance to this issue whether the Establishment Clause was originally conceived of as a specific limitation on the taxing and spending power. Madison's Remonstrance has nothing whatever to say on the question whether suits alleging violations of that limitation are anything other than the generalized grievances that federal courts had always been barred from considering before Flast. Flast was forced to rely on the slim reed of the Remonstrance since there was no better support for its novel conclusion, in 1968, that violation of the Establishment Clause, unique among the provisions of our law, had always inflicted a personalized Psychic Injury upon all taxpayers that federal courts had the power to remedy. Moreover, Flast is damaged goods, not only because its fanciful two-pronged "nexus" test has been demonstrated to be irrelevant to the test's supposed objective, but also because its cavalier treatment of the standing requirement rested upon a fundamental underestimation of that requirement's importance. Flast was explicitly and erroneously premised on the idea that Article III standing does not perform a crucial separation-of-powers function: "The question whether a particular person is a proper party to maintain the action does not, by its own force, raise separation of powers problems related to improper judicial interference in areas committed to other branches of the Federal Government. Such problems arise, if at all, only from the substantive issues the individual seeks to have adjudicated. Thus, in terms of Article III limitations on federal court jurisdiction, the question of standing is related only to whether the dispute sought to be adjudicated will be presented in an adversary context and in a form historically viewed as capable of judicial resolution." 392 U.S., at 100-101, 88 S. Ct. 1942. A perceptive Frenchman, visiting the United States some 135 years before Chief Justice Warren wrote these words, perceived that they were false. "It is true that ... judicial censure, exercised by the courts on legislation, cannot extend without distinction to all laws, for there are some of them that can never give rise to the sort of clearly formulated dispute that one calls a case." A. de Tocqueville, Democracy in America 97 (H. Mansfield & D. Winthrop transls. and eds.2000) (emphasis added). Flast's crabbed (and judge-empowering) understanding of the role Article III standing plays in preserving our system of separated powers has been repudiated: "To permit a complainant who has no concrete injury to require a court to rule on important constitutional issues in the abstract would create the potential for abuse of the judicial process, distort the role of the Judiciary in its relationship to the Executive and the Legislature and open the Judiciary to an arguable charge of providing `government by injunction.'" Schlesinger, supra, at 222, 94 S. Ct. 2925. See also Richardson, 418 U.S., at 179-180, 94 S. Ct. 2940; Valley Forge, 454 U.S., at 474, 102 S. Ct. 752; Lujan, 504 U.S., at 576-577, 112 S. Ct. 2130. We twice have noted explicitly that Flast failed to recognize the vital separation-of-powers aspect 2584 of Article III standing. See Spencer v. Kemna, 523 U.S. 1, 11-12, 118 S. Ct. 978, 140 L. Ed. 2d 43 (1998); Lewis v. Casey, 518 U.S. 343, 353, n. 3, 116 S. Ct. 2174, 135 L. Ed. 2d 606 (1996). And once a proper understanding of the relationship of standing to the separation of powers is brought to bear, Psychic Injury, even as limited in Flast, is revealed for what it is: a contradiction of the basic propositions that the function of the judicial power "is, solely, to decide on the rights of individuals," Marbury v. Madison, 1 Cranch 137, 170, 2 L. Ed. 60 (1803), and that generalized grievances affecting the public at large have their remedy in the political process. Overruling prior precedents, even precedents as disreputable as Flast, is nevertheless a serious undertaking, and I understand the impulse to take a minimalist approach. But laying just claim to be honoring stare decisis requires more than beating Flast to a pulp and then sending it out to the lower courts weakened, denigrated, more incomprehensible than ever, and yet somehow technically alive. Even before the addition of the new meaningless distinction devised by today's plurality, taxpayer standing in Establishment Clause cases has been a game of chance. In the proceedings below, well-respected federal judges declined to hear this case en banc, not because they thought the issue unimportant or the panel decision correct, but simply because they found our cases so lawless that there was no point in, quite literally, second-guessing the panel. See Freedom From Religion Foundation, Inc. v. Chao, 447 F.3d 988 (C.A.7 2006) (Flaum, C. J., concurring in denial of rehearing en banc); id., at 989-990 (Easterbrook, J., concurring in denial of rehearing en banc) (describing our cases as "arbitrary," "illogical," and lacking in "comprehensiveness and rationality"). We had an opportunity today to erase this blot on our jurisprudence, but instead have simply smudged it. My call for the imposition of logic and order upon this chaotic set of precedents will perhaps be met with the snappy epigram that "[t]he life of the law has not been logic: it has been experience." O. Holmes, The Common Law 1 (1881). But what experience has shown is that Flast's lack of a logical theoretical underpinning has rendered our taxpayer-standing doctrine such a jurisprudential disaster that our appellate judges do not know what to make of it. And of course the case has engendered no reliance interests, not only because one does not arrange his affairs with an eye to standing, but also because there is no relying on the random and irrational. I can think of few cases less warranting of stare decisis respect. It is timeit is past timeto call an end. Flast should be overruled.	The separation-of-powers design in the Constitution is implemented, among other means, by Article III's case-or-controversy limitation and the resulting requirement of standing. See, e.g., The Court's decision in and in later cases applying it, must be interpreted as respecting separation-of-powers principles but acknowledging as well that these principles, in some cases, must accommodate the First Amendment's Establishment Clause. The clause expresses the Constitution's special concern that freedom of conscience not be compromised by government taxing and spending in support of religion. In my view the result reached in is correct and should not be called into question. For the reasons set forth by Justice ALITO, however, should not be extended to permit taxpayer standing in the instant matter. And I join his opinion in full. Respondents' amended complaint challenged the religious nature of national and regional conferences that promoted President Bush's Faith-Based and Community Initiatives. See App. to Pet. for Cert. 73a-77a. To support the allegation respondents pointed to speeches given by the President and other executive officers, speeches with religious references. at 73a-76a. The complaint relies on respondents' taxpayer status as the sole basis for standing to maintain the suit but points to no specific use of Congress' taxing and spending power other than general appropriations to fund the administration of the Executive Branch. at 71a-73a. established a "narrow exception" to the rule against taxpayer standing. To find standing in the circumstances of this case would make the narrow exception boundless. The public events and public speeches respondents seek to call in question are part of the open discussion essential to democratic self-government. The Executive Branch should be free, as a general matter, to discover new ideas, to understand pressing public demands, and to find creative responses to address governmental concerns. The exchange of ideas between and among the State and Federal Governments and their manifold, diverse constituencies sustains a free society. Permitting any and all taxpayers to challenge the content of these prototypical executive operations and dialogues would 2573 lead to judicial intervention so far exceeding traditional boundaries on the Judiciary that there would arise a real danger of judicial oversight of executive duties. The burden of discovery to ascertain if relief is justified in these potentially innumerable cases would risk altering the free exchange of ideas and information. And were this constant supervision to take place the courts would soon assume the role of speech editors for communications issued by executive officials and event planners for meetings they hold. The courts must be reluctant to expand their authority by requiring intrusive and unremitting judicial management of the way the Executive Branch performs its duties. The Court has refused to establish a constitutional rule that would require or allow "permanent judicial intervention in the conduct of governmental operations to a degree inconsistent with sound principles of federalism and the separation of powers." ; see also (noting that "separation-of-powers considerations should inform a court of appeals' evaluation of a mandamus petition involving the President or the Vice President" and that "mandamus standards are broad enough. to prevent a lower court from interfering with a coequal branch's ability to discharge its constitutional responsibilities"). In the Article III context the Court explained that concerns based on separation of powers "counsel[ed] against recognizing standing in a case brought to seek a restructuring of the apparatus established by the Executive Branch to fulfill its legal duties." The same principle applies here. The Court should not authorize the constant intrusion upon the executive realm that would result from granting taxpayer standing in the instant case. As JUSTICE ALITO explains in detail, the Court's precedents do not require it to do so. The separation-of-powers concerns implicated by intrusive judicial regulation of day-to-day executive operations reinforce his interpretation of 's framework. Cf. Allen, at n. 26, (relying "on separation of powers principles to interpret the `fairly traceable' component of the standing requirement"). It must be remembered that, even where parties have no standing to sue, members of the Legislative and Executive Branches are not excused from making constitutional determinations in the regular course of their duties. Government officials must make a conscious decision to obey the Constitution whether or not their acts can be challenged in a court of law and then must conform their actions to these principled determinations. Justice SCALIA, with whom Justice THOMAS joins, concurring in the judgment. Today's opinion is, in one significant respect, entirely consistent with our previous cases addressing taxpayer standing to raise Establishment Clause challenges to government expenditures. Unfortunately, the consistency lies in the creation of utterly meaningless distinctions which separate the case at hand from the precedents that have come out differently, but which cannot possibly be (in any sane world) the reason it comes out differently. If this Court is to decide cases by rule of law rather than show of hands, we must surrender to logic and choose sides: Either should be applied to (at a minimum) all challenges to the governmental expenditure of general tax revenues 2574 in a manner alleged to violate a constitutional provision specifically limiting the taxing and spending power, or should be repudiated. For me, the choice is easy. is wholly irreconcilable with the Article III restrictions on federal-court jurisdiction that this Court has repeatedly confirmed are embodied in the doctrine of standing. I A There is a simple reason why our taxpayer-standing cases involving Establishment Clause challenges to government expenditures are notoriously inconsistent: We have inconsistently described the first element of the "irreducible constitutional minimum of standing," which minimum consists of (1) a "concrete and particularized" "`injury in fact'" that is (2) fairly traceable to the defendant's alleged unlawful conduct and (3) likely to be redressed by a favorable decision. See We have alternately relied on two entirely distinct conceptions of injury in fact, which for convenience I will call "Wallet Injury" and "Psychic Injury." Wallet Injury is the type of concrete and particularized injury one would expect to be asserted in a taxpayer suit, namely, a claim that the plaintiff's tax liability is higher than it would be, but for the allegedly unlawful government action. The stumbling block for suits challenging government expenditures based on this conventional type of injury is quite predictable. The plaintiff cannot satisfy the traceability and redressability prongs of standing. It is uncertain what the plaintiff's tax bill would have been had the allegedly forbidden expenditure not been made, and it is even more speculative whether the government will, in response to an adverse court decision, lower taxes rather than spend the funds in some other manner. Psychic Injury, on the other hand, has nothing to do with the plaintiff's tax liability. Instead, the injury consists of the taxpayer's mental displeasure that money extracted from him is being spent in an unlawful manner. This shift in focus eliminates traceability and redressability problems. Psychic Injury is directly traceable to the improper use of taxpayer funds, and it is redressed when the improper use is enjoined, regardless of whether that injunction affects the taxpayer's purse. and the cases following its teaching have invoked a peculiarly restricted version of Psychic Injury, permitting taxpayer displeasure over unconstitutional spending to support standing only if the constitutional provision allegedly violated is a specific limitation on the taxing and spending Restricted or not, this conceptualizing of injury in fact in purely mental terms conflicts squarely with the familiar proposition that a plaintiff lacks a concrete and particularized injury when his only complaint is the generalized grievance that the law is being violated. As we reaffirmed unanimously just this Term: "`We have consistently held that a plaintiff raising only a generally available grievance about governmentclaiming 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 largedoes not state an Article III case or controversy.'" (quoting ). As the following review of our cases demonstrates, we initially denied taxpayer standing based on Wallet Injury, but then 2575 found standing in some later cases based on the limited version of Psychic Injury described above. The basic logical flaw in our cases is thus twofold: We have never explained why Psychic Injury was insufficient in the cases in which standing was denied, and we have never explained why Psychic Injury, however limited, is cognizable under Article III. B 1 Two pre- cases are of critical importance. In v. Mellon, decided with the taxpayer challenged the constitutionality of the Maternity Act of 1921, alleging in part that the federal funding provided by the Act was not authorized by any provision of the Constitution. See (argument for ), 479-480 (opinion of the Court). The Court held that the taxpayer lacked standing. After emphasizing that "the effect upon future taxation of any payment out of [Treasury] funds" was "remote, fluctuating and uncertain," the Court concluded that "[t]he 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," The Court was thus describing the traceability and redressability problems with Wallet Injury, and rejecting Psychic Injury as a generalized grievance rather than concrete and particularized harm. The second significant pre- case is There the taxpayers challenged under the Establishment Clause a state law requiring public-school teachers to read the Bible at the beginning of each school day.[1] Relying extensively on the Court denied standing. After first emphasizing that there was no allegation that the Bible reading increased the plaintiffs' taxes or the cost of running the and then reaffirming that taxpayers must allege more than an indefinite injury suffered in common with people generally, the Court concluded that the "grievance which [the plaintiffs] sought to litigate here is not a direct dollars-and-cents injury but is a religious difference," In addition to reiterating 's description of the unavoidable obstacles to recovery under a taxpayer theory of Wallet Injury, Doremus rejected Psychic Injury in unmistakable terms. The opinion's deprecation of a mere "religious difference," in contrast to a real "dollars-and-cents injury," can only be understood as a flat denial of standing supported only by taxpayer disapproval of the unconstitutional use of tax funds. If the Court had thought that Psychic Injury was a permissible basis for standing, it should have sufficed (as the dissenting Justices in Doremus suggested, see (opinion of Douglas, J.)) that 2576 public employees were being paid in part to violate the Establishment Clause. 2 Sixteen years after Doremus, the Court took a pivotal turn. In taxpayers challenged the Elementary and Secondary Education Act of 1965, alleging that funds expended pursuant to the Act were being used to support parochial They argued that either the Act itself proscribed such expenditures or that the Act violated the Establishment Clause. The Court held that the taxpayers had standing. Purportedly in order to determine whether taxpayers have the "personal stake and interest" necessary to satisfy Article III, a two-pronged nexus test was invented. The first prong required the taxpayer to "establish a logical link between [taxpayer] status and the type of legislative enactment." The Court described what that meant as follows: "[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. This requirement is consistent with the limitation imposed upon state-taxpayer standing in federal courts in Doremus." The second prong required the taxpayer to "establish a nexus between [taxpayer] status and the precise nature of the constitutional infringement alleged." The Court elaborated that this required "the taxpayer [to] 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." -103, The Court held that the Establishment Clause was the type of specific limitation on the taxing and spending power that it had in mind because "one of the specific evils feared by" the Framers of that Clause was that the taxing and spending power would be used to favor one religion over another or to support religion generally. (relying exclusively upon Madison's famous Memorial and Remonstrance Against Religious Assessments). Because both prongs of its newly minted two-part test were satisfied, held that the taxpayers had standing. Wallet Injury could not possibly have been the basis for this conclusion, since the taxpayers in were no more able to prove that success on the merits would reduce their tax burden than was the taxpayer in Thus, relied on Psychic Injury to support standing, describing the "injury" as the taxpayer's allegation that "his tax money is being extracted and spent in violation of specific constitutional protections against such abuses of legislative " But that created a problem: If the taxpayers in had standing based on Psychic Injury, and without regard to the effect of the litigation on their ultimate tax liability, why did not the taxpayers in Doremus and have standing on a similar basis? Enter the magical two-pronged nexus test. It has often been pointed out, and never refuted, that the criteria in 's two-part test are entirely unrelated to the purported goal of ensuring that the plaintiff has a sufficient 2577 "stake in the outcome of the controversy." See -124, (Harlan, J., dissenting); see also (Douglas, J., concurring); United In truth, the test was designed for a quite different goal. Each prong was meant to disqualify from standing one of the two prior cases that would otherwise contradict the holding of The first prong distinguished Doremus as involving a challenge to an "incidental expenditure of tax funds in the administration of an essentially regulatory statute," rather than a challenge to a taxing and spending statute. See 392 Did the Court proffer any reason why a taxpayer's Psychic Injury is less concrete and particularized, traceable, or redressable when the challenged expenditures are incidental to an essentially regulatory statute (whatever that means)? Not at all. Doremus had to be evaded, and so it was. In reality, of course, there is simply no material difference between and Doremus as far as Psychic Injury is concerned: If taxpayers upset with the government's giving money to parochial had standing to sue, so should the taxpayers who disapproved of the government's paying public-school teachers to read the Bible.[2] 's dispatching of via the second prong of the nexus test was only marginally less disingenuous. Not only does the relationship of the allegedly violated provision to the taxing and spending power have no bearing upon the concreteness or particularity of the Psychic Injury, see Part III, infra, but the existence of that relationship does not even genuinely distinguish from It is impossible to maintain that the Establishment Clause is a more direct limitation on the taxing and spending power than the constitutional limitation invoked in which is contained within the very provision creating the power to tax and spend. Article I, 8, cl. 1, provides: "The Congress shall have Power To lay and collect Taxes, to pay the Debts and provide for the common Defence and general Welfare of the United States." (Emphasis added.) Though unmentioned in it was precisely this limitation upon the permissible purposes of taxing and spending upon which Mrs. relied. See, e.g., Brief for Appellant in O.T.1922, No. 962, p. 68 ("[T]he words `provide for the common defence and general welfare of the United States' are used as limitations on the taxing power"); 3 Coherence and candor have fared no better in our later taxpayer-standing cases. The three of them containing lengthy discussion of the Establishment Clause warrant analysis. was dismissively and unpersuasively distinguished just 13 years later in Valley Christian The taxpayers there challenged the decision of the Department of Health, Education, and Welfare to give a 77-acre tract of Government property, worth over half a million dollars, to a religious organization. The Court, adhering to the strict letter of 's two-pronged nexus test, held that the taxpayers lacked standing. 's first prong was not satisfied: Rather than challenging a congressional taxing and spending statute, the plaintiffs were attacking an agency decision to transfer federal property pursuant to Congress's power under the Property Clause, Art. IV, 3, cl. -480, In distinguishing between the Spending Clause and the Property Clause, Valley achieved the seemingly impossible: It surpassed the high bar for irrationality set by 's distinguishing of Doremus and Like the dissenters in Valley see -512, (opinion of Brennan, J.); (opinion of STEVENS, J.), I cannot fathom why Article III standing should turn on whether the government enables a religious organization to obtain real estate by giving it a check drawn from general tax revenues or instead by buying the property itself and then transferring title. While Valley 's application of the first prong to distinguish was unpersuasive, the Court was at least not trying to hide the ball. Its holding was forthrightly based on a resounding rejection of the very concept of Psychic Injury: "[Plaintiffs] fail to identify any personal injury suffered by them as a consequence of the alleged constitutional error, other than the psychological consequence presumably produced by observation of conduct with which one disagrees. That is not an injury sufficient to confer standing under Art. III, even though the disagreement is phrased in constitutional terms. It is evident that respondents are firmly committed to the constitutional principle of separation of church and State, but standing is not measured by the intensity of the litigant's interest or the fervor of his advocacy." -486, (emphasis omitted). Of course, in keeping with what was to become the shameful tradition of our taxpayer-standing cases, the Court's candor about the inadequacy of Psychic Injury was combined with a notable silence as to why itself was not doomed. A mere six years later, was resuscitated in The taxpayers there brought facial and as-applied Establishment Clause challenges to the Adolescent Family Life Act (AFLA), which was a congressional scheme that provided grants to public or nonprofit private organizations to combat premarital adolescent pregnancy and sex. The as-applied challenge focused on whether particular grantees selected by the Secretary of Health and Human Services were constitutionally permissible recipients. The Solicitor General argued that, under Valley 's application of 's first prong, the taxpayers lacked standing for their as-applied claim because that claim was really a challenge to executive decisionmaking, not to Congress's exercise of its taxing and spending 487 at -619, The Court rejected this contention, holding that the taxpayers' as-applied claim was still a challenge to Congress's taxing and spending power even 2579 though disbursement of the funds authorized by Congress had been administered by the Secretary. Kendrick, like before it, was obviously based on Psychic Injury: The taxpayers could not possibly make, and did not attempt to make, the showing required for Wallet Injury. But by relying on Psychic Injury, Kendrick perfectly revealed the incompatibility of that concept with the outcome in Doremus. Just as Kendrick did not care whether the appropriated funds would have been spent anyway given to a different, permissible recipient so also Doremus should not have cared that the teachers would likely receive the same salary once their classroom activities were limited to secular conduct. and Kendrick's acceptance of Psychic Injury is fundamentally at odds with Doremus, and Valley Which brings me to the final case worthy of mention. Last Term, in DaimlerChrysler we concisely confirmed that was based on Psychic Injury. The taxpayers in that case sought to rely on to raise a Commerce Clause challenge to a state franchise tax credit. 547 at In rejecting the analogy and denying standing, we described as follows: "The Court understood the `injury' alleged in Establishment Clause challenges to federal spending to be the very `extract[ion] and spen[ding]' of `tax money' in aid of religion alleged by a plaintiff. And an injunction against the spending would of course redress that injury, regardless of whether lawmakers would dispose of the savings in a way that would benefit the taxpayer-plaintiffs personally." 547 at What Cuno's conceptualization of reveals is that there are only two logical routes available to this Court. We must initially decide whether Psychic Injury is consistent with Article III. If it is, we should apply to all challenges to government expenditures in violation of constitutional provisions that specifically limit the taxing and spending power; if it is not, we should overturn II A The plurality today avails itself of neither principled option. Instead, essentially accepting the Solicitor General's primary submission, it limits to challenges to expenditures that are "expressly authorized or mandated by specific congressional enactment." Ante, at 2568. It offers no intellectual justification for this limitation, except that "[i]t is a necessary concomitant of the doctrine of stare decisis that a precedent is not always expanded to the limit of its logic." Ante, at 2571. That is true enough, but since courts purport to be engaged in reasoned decisionmaking, it is only true when (1) the precedent's logic is seen to require narrowing or readjustment in light of relevant distinctions that the new fact situation brings to the fore; or (2) its logic is fundamentally flawed, and so deserves to be limited to the facts that begot it. Today's plurality claims neither of these justifications. As to the first, the plurality offers no explanation of why the factual differences between this case and are material. It virtually admits that express congressional allocation vel non has nothing to do with whether the plaintiffs have alleged an injury in fact that is fairly traceable and likely to be redressed. See ante, at 2580 2568-2569. As the dissent correctly contends and I shall not belabor, see post, at 2585-2586 (opinion of SOUTER, J.), is indistinguishable from this case for purposes of Article III. Whether the challenged government expenditure is expressly allocated by a specific congressional enactment has absolutely no relevance to the Article III criteria of injury in fact, traceability, and redressability. Yet the plurality is also unwilling to acknowledge that the logic of (its Psychic Injury rationale) is simply wrong, and for that reason should not be extended to other cases. Despite the lack of acknowledgment, however, that is the only plausible explanation for the plurality's indifference to whether the "distinguishing" fact is legally material, and for its determination to limit to its "`resul[t],'" ante, at 2568-2569.[3] Why, then, pick a distinguishing fact that may breathe life into in future cases, preserving the disreputable disarray of our Establishment Clause standing jurisprudence? Why not hold that only taxpayers raising Establishment Clause challenges to expenditures pursuant to the Elementary and Secondary Education Act of 1965 have standing? That, I suppose, would be too obvious a repudiation of and thus an impediment to the plurality's pose of minimalism. Because the express-allocation line has no mooring to our tripartite test for Article III standing, it invites demonstrably absurd results. For example, the plurality would deny standing to a taxpayer challenging the President's disbursement to a religious organization of a discrete appropriation that Congress had not explicitly allocated to that purpose, even if everyone knew that Congress and the President had informally negotiated that the entire sum would be spent in that precise manner. See ante, at 2568, n. 7 (holding that nonstatutory earmarks are insufficient to satisfy the express-allocation requirement). And taxpayers should lack standing to bring Establishment Clause challenges to the Executive Branch's use of appropriated funds when those expenditures have the added vice of violating congressional restrictions. If, for example, Congress instructs the President to disburse grants to hospitals that he deems worthy, and the President instead gives all of the money to the Catholic Church, "[t]he link between congressional action and constitutional violation that supported taxpayer standing in [would be] missing." Ante, at 2565-2566. Indeed, taking the plurality at its word, Congress could insulate the President from all -based suits by codifying the truism that no appropriation can be spent by the Executive Branch in a manner that violates the Establishment Clause. Any last pretense of minimalismof adhering to prior law but merely declining to "extend" itis swept away by the fact that the Court's holding flatly contradicts Kendrick. The whole point of the as-applied challenge in Kendrick was that the Secretary, not Congress, had chosen inappropriate grant recipients. 487 Both Kendrick and this case equally involve, in the relevant 2581 sense, attacks on executive discretion rather than congressional decision: Congress generally authorized the spending of tax funds for certain purposes but did not explicitly mandate that they be spent in the unconstitutional manner challenged by the taxpayers. I thus share the dissent's bewilderment, see post, at 2586-2587 (opinion of SOUTER, J.), as to why the plurality fixates on the amount of additional discretion the Executive Branch enjoys under the law beyond the only discretion relevant to the Establishment Clause issue: whether to spend taxpayer funds for a purpose that is unconstitutional. See ante, at 2572 (focusing on whether the case involves "a purely discretionary Executive Branch expenditure" (emphasis added)). B While I have been critical of the Members of the plurality, I by no means wish to give the impression that respondents' legal position is any more coherent. Respondents argue that did not turn on whether Congress has expressly allocated the funds to the allegedly unconstitutional use, and their case plainly rests on Psychic Injury. They repeatedly emphasize that the injury in was merely the governmental extraction and spending of tax money in aid of religion. See, e.g., Brief for Respondents 28. Respondents refuse to admit that their argument logically implies, for the reasons already discussed, that every expenditure of tax revenues that is alleged to violate the Establishment Clause is subject to suit under Of course, such a concession would run headlong into the denial of standing in Doremus. Respondents' only answer to Doremus is the cryptic assertion that the injury there was not fairly traceable to the unconstitutional conduct. Brief for Respondents 21, and n. 7. This makes no sense. On 's theory of Psychic Injury, the injury in Doremus was perfectly traceable and not in any way attenuated. It consisted of the psychic frustration that tax funds were being used in violation of the Establishment Clause, which was directly caused by the paying of teachers to read the Bible, and which would have been remedied by prohibition of that expenditure.[4] The hollowness of respondents' traceability argument is perhaps best demonstrated by their counsel's game submission at oral argument that there would be standing to challenge the hiring of a single Secret Service agent who guarded the President during religious trips, but no standing if those responsibilities (and the corresponding taxpayer-funded compensation) were spread out over the entire Secret Service protective detail. Tr. of Oral Arg. 38-39. The logical consequence of respondents' position finds no support in this Court's precedents or our Nation's history. Any taxpayer would be able to sue whenever tax funds were used in alleged violation of the Establishment Clause. So, for example, any taxpayer could challenge the fact that the Marshal of our Court is paid, in part, to call the courtroom to order by proclaiming "God Save the United States and this Honorable Court." As much as respondents wish to deny that this is what logically entails, it blinks reality to conclude otherwise. If respondents are to 2582 prevail, they must endorse a future in which ideologically motivated taxpayers could "roam the country in search of governmental wrongdoing and reveal their discoveries in federal court," transforming those courts into "ombudsmen of the general welfare" with respect to Establishment Clause issues. Valley 454 at 487, C Ultimately, the arguments by the parties in this case and the opinions of my colleagues serve only to confirm that 's adoption of Psychic Injury has to be addressed head-on. Minimalism is an admirable judicial trait, but not when it comes at the cost of meaningless and disingenuous distinctions that hold the sure promise of engendering further meaningless and disingenuous distinctions in the future. The rule of law is ill served by forcing lawyers and judges to make arguments that deaden the soul of the law, which is logic and reason. Either was correct, and must be accorded the wide application that it logically dictates, or it was not, and must be abandoned in its entirety. I turn, finally, to that question. III Is a taxpayer's purely psychological displeasure that his funds are being spent in an allegedly unlawful manner ever sufficiently concrete and particularized to support Article III standing? The answer is plainly no. As I noted at the outset, explained that the "consisten[t]" view of this Court has been that "a plaintiff raising only a generally available grievance about governmentclaiming 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 largedoes not state an Article III case or controversy." 504 As evidence of the consistency with which we have affirmed that understanding, relied on the reasoning in and in several other cases, including Ex parte Levitt, 302 633, (dismissing suit challenging Justice Black's appointment to this Court in alleged violation of the Ineligibility Clause, Art. I, 6, cl. 2), United (denying standing to challenge the Government's failure to disclose the CIA's expenditures in alleged violation of the Accounts Clause, Art. I, 9, cl. 7), and 418 208, (rejecting challenge to Members of Congress holding commissions in the military Reserves in alleged violation of the Incompatibility Clause, Art. I, 6, cl. 2). See 504 at 573-577, Just this Term, relying on precisely the same cases and the same reasoning, we held unanimously that suits raising only generalized grievances do not satisfy Article III's requirement that the injury in fact be concrete and particularized. See Lance, 549 at 127 S.Ct., at -1197.[5] Nor does 's limitation on Psychic Injurythe limitation that it suffices only when the two-pronged "nexus" test is 2583 metcure the Article III deficiency. The fact that it is the alleged violation of a specific constitutional limit on the taxing and spending power that produces the tax-payer's mental angst does not change the fundamental flaw. It remains the case that the taxpayer seeks "relief that no more directly and tangibly benefits him than it does the public at large." And it is of no conceivable relevance to this issue whether the Establishment Clause was originally conceived of as a specific limitation on the taxing and spending Madison's Remonstrance has nothing whatever to say on the question whether suits alleging violations of that limitation are anything other than the generalized grievances that federal courts had always been barred from considering before was forced to rely on the slim reed of the Remonstrance since there was no better support for its novel conclusion, in that violation of the Establishment Clause, unique among the provisions of our law, had always inflicted a personalized Psychic Injury upon all taxpayers that federal courts had the power to remedy. Moreover, is damaged goods, not only because its fanciful two-pronged "nexus" test has been demonstrated to be irrelevant to the test's supposed objective, but also because its cavalier treatment of the standing requirement rested upon a fundamental underestimation of that requirement's importance. was explicitly and erroneously premised on the idea that Article III standing does not perform a crucial separation-of-powers function: "The question whether a particular person is a proper party to maintain the action does not, by its own force, raise separation of powers problems related to improper judicial interference in areas committed to other branches of the Federal Government. Such problems arise, if at all, only from the substantive issues the individual seeks to have adjudicated. Thus, in terms of Article III limitations on federal court jurisdiction, the question of standing is related only to whether the dispute sought to be adjudicated will be presented in an adversary context and in a form historically viewed as capable of judicial resolution." 392 at 100-101, A perceptive Frenchman, visiting the United States some 135 years before Chief Justice Warren wrote these words, perceived that they were false. "It is true that judicial censure, exercised by the courts on legislation, cannot extend without distinction to all laws, for there are some of them that can never give rise to the sort of clearly formulated dispute that one calls a case." A. de Tocqueville, Democracy in America 97 (H. Mansfield & D. Winthrop transls. and eds.2000) (emphasis added). 's crabbed (and judge-empowering) understanding of the role Article III standing plays in preserving our system of separated powers has been repudiated: "To permit a complainant who has no concrete injury to require a court to rule on important constitutional issues in the abstract would create the potential for abuse of the judicial process, distort the role of the Judiciary in its relationship to the Executive and the Legislature and open the Judiciary to an arguable charge of providing `government by injunction.'" Schlesinger, See also 418 at 179-180, ; Valley 454 at 474, ; 504 at 576-577, We twice have noted explicitly that failed to recognize the vital separation-of-powers aspect *2584 of Article III standing. See 523 1, ; 518 343, And once a proper understanding of the relationship of standing to the separation of powers is brought to bear, Psychic Injury, even as limited in is revealed for what it is: a contradiction of the basic propositions that the function of the judicial power "is, solely, to decide on the rights of individuals," and that generalized grievances affecting the public at large have their remedy in the political process. Overruling prior precedents, even precedents as disreputable as is nevertheless a serious undertaking, and I understand the impulse to take a minimalist approach. But laying just claim to be honoring stare decisis requires more than beating to a pulp and then sending it out to the lower courts weakened, denigrated, more incomprehensible than ever, and yet somehow technically alive. Even before the addition of the new meaningless distinction devised by today's plurality, taxpayer standing in Establishment Clause cases has been a game of chance. In the proceedings below, well-respected federal judges declined to hear this case en banc, not because they thought the issue unimportant or the panel decision correct, but simply because they found our cases so lawless that there was no point in, quite literally, second-guessing the panel. See Freedom From Religion Foundation, ; (describing our cases as "arbitrary," "illogical," and lacking in "comprehensiveness and rationality"). We had an opportunity today to erase this blot on our jurisprudence, but instead have simply smudged it. My call for the imposition of logic and order upon this chaotic set of precedents will perhaps be met with the snappy epigram that "[t]he life of the law has not been logic: it has been experience." O. Holmes, The Common Law 1 (1881). But what experience has shown is that 's lack of a logical theoretical underpinning has rendered our taxpayer-standing doctrine such a jurisprudential disaster that our appellate judges do not know what to make of it. And of course the case has engendered no reliance interests, not only because one does not arrange his affairs with an eye to standing, but also because there is no relying on the random and irrational. I can think of few cases less warranting of stare decisis respect. It is timeit is past timeto call an end. should be overruled.	2,062
Justice Souter	dissenting	false	Hein v. Freedom From Religion Foundation, Inc.	2007-06-25	null	https://www.courtlistener.com/opinion/145704/hein-v-freedom-from-religion-foundation-inc/	https://www.courtlistener.com/api/rest/v3/clusters/145704/	2,007	2006-071	1	5	4	Flast v. Cohen, 392 U.S. 83, 102, 88 S. Ct. 1942, 20 L. Ed. 2d 947 (1968), held that plaintiffs with an Establishment Clause claim could "demonstrate the necessary stake as taxpayers in the outcome of the litigation to satisfy Article III requirements." Here, the controlling, plurality opinion declares that Flast does not apply, but a search of that opinion for a suggestion that these taxpayers have any less stake in the outcome than the taxpayers in Flast will come up empty: the plurality makes no such finding, nor could it. Instead, the controlling opinion closes the door on these taxpayers because the Executive Branch, and not the Legislative Branch, caused their injury. I see no basis for this distinction in either logic or precedent, and respectfully dissent. I We held in Flast, and repeated just last Term, that the "`injury' alleged in Establishment 2585 Clause challenges to federal spending" is "the very `extract[ion] and spen[ding]' of `tax money' in aid of religion." DaimlerChrysler Corp. v. Cuno, 547 U.S. ___, ___, 126 S. Ct. 1854, 1865, 164 L. Ed. 2d 589 (2006) (quoting Flast, supra, at 106, 88 S. Ct. 1942; alterations in original). As the Court said in Flast, the importance of that type of injury has deep historical roots going back to the ideal of religious liberty in James Madison's Memorial and Remonstrance Against Religious Assessments, that the government in a free society may not "force a citizen to contribute three pence only of his property for the support of any one establishment" of religion. 2 Writings of James Madison 183, 186 (G. Hunt ed.1901) (hereinafter Madison), quoted in Flast, supra, at 103, 88 S. Ct. 1942. Madison thus translated into practical terms the right of conscience described when he wrote that "[t]he Religion... of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate." Madison 184; see also Zelman v. Simmons-Harris, 536 U.S. 639, 711, n. 22, 122 S. Ct. 2460, 153 L. Ed. 2d 604 (2002) (SOUTER, J., dissenting) ("As a historical matter, the protection of liberty of conscience may well have been the central objective served by the Establishment Clause"); Locke v. Davey, 540 U.S. 712, 722, 124 S. Ct. 1307, 158 L. Ed. 2d 1 (2004) ("Since the founding of our country, there have been popular uprisings against procuring taxpayer funds to support church leaders, which was one of the hallmarks of an `established' religion"); N. Feldman, Divided By God: America's Church-State ProblemAnd What We Should Do About It 48 (2005) ("The advocates of a constitutional ban on establishment were concerned about paying taxes to support religious purposes that their consciences told them not to support"). The right of conscience and the expenditure of an identifiable three pence raised by taxes for the support of a religious cause are therefore not to be split off from one another. The three pence implicates the conscience, and the injury from Government expenditures on religion is not accurately classified with the "Psychic Injury" that results whenever a congressional appropriation or executive expenditure raises hackles of disagreement with the policy supported, see ante, at 2577 (SCALIA, J., concurring in judgment). Justice Stewart recognized this in his concurring opinion in Flast, when he said that "every taxpayer can claim a personal constitutional right not to be taxed for the support of a religious institution," and thus distinguished the case from one in which a taxpayer sought only to air a generalized grievance in federal court. 392 U.S., at 114, 88 S. Ct. 1942. Here, there is no dispute that taxpayer money in identifiable amounts is funding conferences, and these are alleged to have the purpose of promoting religion. Cf. Doremus v. Board of Ed. of Hawthorne, 342 U.S. 429, 434, 72 S. Ct. 394, 96 L. Ed. 475 (1952). The taxpayers therefore seek not to "extend" Flast, ante, at 2571-2572 (plurality opinion), but merely to apply it. When executive agencies spend identifiable sums of tax money for religious purposes, no less than when Congress authorizes the same thing, taxpayers suffer injury. And once we recognize the injury as sufficient for Article III, there can be no serious question about the other elements of the standing enquiry: the injury is indisputably "traceable" to the spending, and "likely to be redressed by" an injunction prohibiting it. Allen v. Wright, 468 U.S. 737, 751, 104 S. Ct. 3315, 82 L. Ed. 2d 556 (1984); see also Cuno, supra, at ___, 126 S.Ct., at 1865 ("[A]n injunction against the spending would of course redress that injury"). 2586 The plurality points to the separation of powers to explain its distinction between legislative and executive spending decisions, see ante, at 2569-2570, but there is no difference on that point of view between a Judicial Branch review of an executive decision and a judicial evaluation of a congressional one. We owe respect to each of the other branches, no more to the former than to the latter, and no one has suggested that the Establishment Clause lacks applicability to executive uses of money. It would surely violate the Establishment Clause for the Department of Health and Human Services to draw on a general appropriation to build a chapel for weekly church services (no less than if a statute required it), and for good reason: if the Executive could accomplish through the exercise of discretion exactly what Congress cannot do through legislation, Establishment Clause protection would melt away.[1] So in Bowen v. Kendrick, 487 U.S. 589, 108 S. Ct. 2562, 101 L. Ed. 2d 520 (1988), we recognized the equivalence between a challenge to a congressional spending bill and a claim that the Executive Branch was spending an appropriation, each in violation of the Establishment Clause. We held that the "claim that ... funds [were] being used improperly by individual grantees [was no] less a challenge to congressional taxing and spending power simply because the funding authorized by Congress has flowed through and been administered by the Secretary," and we added that "we have not questioned the standing of taxpayer plaintiffs to raise Establishment Clause challenges, even when their claims raised questions about the administratively made grants." Id., at 619, 108 S. Ct. 2562. The plurality points out that the statute in Bowen "expressly authorized and appropriated specific funds for grantmaking" and "expressly contemplated that some of those moneys might go to projects involving religious groups." Ante, at 2567. That is all true, but there is no reason to think it should matter, and every indication in Bowen that it did not. In Bowen we already had found the statute valid on its face before we turned to the taxpayers' as-applied challenge, see 487 U.S., at 618, 108 S. Ct. 2562, so the case cannot be read to hold that taxpayers have standing only to claim that congressional action, but not its implementation, violates the Establishment Clause. Thus, after Bowen, the plurality's distinction between a "congressional mandate" on the one hand and "executive discretion" on the other, ante, at 2568, is at once arbitrary and hard to manage: if the statute itself is constitutional, all complaints must be about the exercise of "executive discretion," so there is no line to be drawn between Bowen and the case before us today.[2] 2587 II While Flast standing to assert the right of conscience is in a class by itself, it would be a mistake to think that case is unique in recognizing standing in a plaintiff without injury to flesh or purse. Cognizable harm takes account of the nature of the interest protected, which is the reason that "the constitutional component of standing doctrine incorporates concepts concededly not susceptible of precise definition," leaving it impossible "to make application of the constitutional standing requirement a mechanical exercise." Allen, 468 U.S., at 751, 104 S. Ct. 3315. The question, ultimately, has to be whether the injury alleged is "too abstract, or otherwise not appropriate, to be considered judicially cognizable." Id., at 752, 104 S. Ct. 3315.[3] In the case of economic or physical harms, of course, the "injury in fact" question is straightforward. But once one strays from these obvious cases, the enquiry can turn subtle. Are esthetic harms sufficient for Article III standing? What about being forced to compete on an uneven playing field based on race (without showing that an economic loss resulted), or living in a racially gerrymandered electoral district? These injuries are no more concrete than seeing one's tax dollars spent on religion, but we have recognized each one as enough for standing. See Friends of Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 183, 120 S. Ct. 693, 145 L. Ed. 2d 610 (2000) (esthetic injury); Northeastern Fla. Chapter, Associated Gen. Contractors of America v. Jacksonville, 508 U.S. 656, 666, 113 S. Ct. 2297, 124 L. Ed. 2d 586 (1993) ("[T]he `injury in fact' is the inability to compete on an equal footing in the bidding process, not the loss of a contract"); United States v. Hays, 515 U.S. 737, 744-745, 115 S. Ct. 2431, 132 L. Ed. 2d 635 (1995) (living in a racially gerrymandered electoral district). This is not to say that any sort of alleged injury will satisfy Article III, but only that intangible harms must be evaluated case by case.[4] Thus, Flast speaks for this Court's recognition (shared by a majority of the Court today) that when the Government spends money for religious purposes a taxpayer's injury is serious and concrete enough to be "judicially cognizable," Allen, supra, at 752, 104 S. Ct. 3315. The judgment of sufficient injury takes account of the Madisonian relationship of tax money and conscience, 2588 but it equally reflects the Founders' pragmatic "conviction that individual religious liberty could be achieved best under a government which was stripped of all power to tax, to support, or otherwise to assist any or all religions," Everson v. Board of Ed. of Ewing, 330 U.S. 1, 11, 67 S. Ct. 504, 91 L. Ed. 711 (1947), and the realization continuing to the modern day that favoritism for religion "`sends the ... message to ... nonadherents "that they are outsiders, not full members of the political community,"'" McCreary County v. American Civil Liberties Union of Ky., 545 U.S. 844, 860, 125 S. Ct. 2722, 162 L. Ed. 2d 729 (2005) (quoting Santa Fe Independent School Dist. v. Doe, 530 U.S. 290, 309-310, 120 S. Ct. 2266, 147 L. Ed. 2d 295 (2000), in turn quoting Lynch v. Donnelly, 465 U.S. 668, 688, 104 S. Ct. 1355, 79 L. Ed. 2d 604 (1984) (O'Connor, J., concurring); omissions in original).[5] Because the taxpayers in this case have alleged the type of injury this Court has seen as sufficient for standing, I would affirm.	, held that plaintiffs with an Establishment Clause claim could "demonstrate the necessary stake as taxpayers in the outcome of the litigation to satisfy Article III requirements." Here, the controlling, plurality opinion declares that does not apply, but a search of that opinion for a suggestion that these taxpayers have any less stake in the outcome than the taxpayers in will come up empty: the plurality makes no such finding, nor could it. Instead, the controlling opinion closes the door on these taxpayers because the Executive Branch, and not the Legislative Branch, caused their injury. I see no basis for this distinction in either logic or precedent, and respectfully dissent. I We held in and repeated just last Term, that the "`injury' alleged in Establishment 2585 Clause challenges to federal spending" is "the very `extract[ion] and spen[ding]' of `tax money' in aid of religion." DaimlerChrysler (quoting ; alterations in original). As the Court said in the importance of that type of injury has deep historical roots going back to the ideal of religious liberty in James Madison's Memorial and Remonstrance Against Religious Assessments, that the government in a free society may not "force a citizen to contribute three pence only of his property for the support of any one establishment" of religion. 2 Writings of James Madison 186 (G. Hunt ed.1901) (hereinafter Madison), quoted in Madison thus translated into practical terms the right of conscience described when he wrote that "[t]he Religion. of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate." Madison 184; see also ("As a historical matter, the protection of liberty of conscience may well have been the central objective served by the Establishment Clause"); ; N. Feldman, Divided By God: America's Church-State ProblemAnd What We Should Do About It 48 ("The advocates of a constitutional ban on establishment were concerned about paying taxes to support religious purposes that their consciences told them not to support"). The right of conscience and the expenditure of an identifiable three pence raised by taxes for the support of a religious cause are therefore not to be split off from one another. The three pence implicates the conscience, and the injury from Government expenditures on religion is not accurately classified with the "Psychic Injury" that results whenever a congressional appropriation or executive expenditure raises hackles of disagreement with the policy supported, see ante, at 2577 (SCALIA, J., concurring in judgment). Justice Stewart recognized this in his concurring opinion in when he said that "every taxpayer can claim a personal constitutional right not to be taxed for the support of a religious institution," and thus distinguished the case from one in which a taxpayer sought only to air a generalized grievance in federal Here, there is no dispute that taxpayer money in identifiable amounts is funding conferences, and these are alleged to have the purpose of promoting religion. Cf. The taxpayers therefore seek not to "extend" ante, at 2571-2572 (plurality opinion), but merely to apply it. When executive agencies spend identifiable sums of tax money for religious purposes, no less than when Congress authorizes the same thing, taxpayers suffer injury. And once we recognize the injury as sufficient for Article III, there can be no serious question about the other elements of the standing enquiry: the injury is indisputably "traceable" to the spending, and "likely to be redressed by" an injunction prohibiting it. ; see also at 126 S.Ct., at 2586 The plurality points to the separation of powers to explain its distinction between legislative and executive spending decisions, see ante, at 2569-2570, but there is no difference on that point of view between a Judicial Branch review of an executive decision and a judicial evaluation of a congressional one. We owe respect to each of the other branches, no more to the former than to the latter, and no one has suggested that the Establishment Clause lacks applicability to executive uses of money. It would surely violate the Establishment Clause for the Department of Health and Human Services to draw on a general appropriation to build a chapel for weekly church services (no less than if a statute required it), and for good reason: if the Executive could accomplish through the exercise of discretion exactly what Congress cannot do through legislation, Establishment Clause protection would melt away.[1] So in we recognized the equivalence between a challenge to a congressional spending bill and a claim that the Executive Branch was spending an appropriation, each in violation of the Establishment Clause. We held that the "claim that funds [were] being used improperly by individual grantees [was no] less a challenge to congressional taxing and spending power simply because the funding authorized by Congress has flowed through and been administered by the Secretary," and we added that "we have not questioned the standing of taxpayer plaintiffs to raise Establishment Clause challenges, even when their claims raised questions about the administratively made grants." The plurality points out that the statute in Bowen "expressly authorized and appropriated specific funds for grantmaking" and "expressly contemplated that some of those moneys might go to projects involving religious groups." Ante, at 2567. That is all true, but there is no reason to think it should matter, and every indication in Bowen that it did not. In Bowen we already had found the statute valid on its face before we turned to the taxpayers' as-applied challenge, see so the case cannot be read to hold that taxpayers have standing only to claim that congressional action, but not its implementation, violates the Establishment Clause. Thus, after Bowen, the plurality's distinction between a "congressional mandate" on the one hand and "executive discretion" on the other, ante, at 2568, is at once arbitrary and hard to manage: if the statute itself is constitutional, all complaints must be about the exercise of "executive discretion," so there is no line to be drawn between Bowen and the case before us today.[2] 2587 II While standing to assert the right of conscience is in a class by itself, it would be a mistake to think that case is unique in recognizing standing in a plaintiff without injury to flesh or purse. Cognizable harm takes account of the nature of the interest protected, which is the reason that "the constitutional component of standing doctrine incorporates concepts concededly not susceptible of precise definition," leaving it impossible "to make application of the constitutional standing requirement a mechanical exercise." 468 U.S., at The question, ultimately, has to be whether the injury alleged is "too abstract, or otherwise not appropriate, to be considered judicially cognizable."[3] In the case of economic or physical harms, of course, the "injury in fact" question is straightforward. But once one strays from these obvious cases, the enquiry can turn subtle. Are esthetic harms sufficient for Article III standing? What about being forced to compete on an uneven playing field based on race (without showing that an economic loss resulted), or living in a racially gerrymandered electoral district? These injuries are no more concrete than seeing one's tax dollars spent on religion, but we have recognized each one as enough for standing. See Friends of Earth, ; Northeastern Fla. Chapter, Associated Gen. Contractors of ; United This is not to say that any sort of alleged injury will satisfy Article III, but only that intangible harms must be evaluated case by case.[4] Thus, speaks for this Court's recognition (shared by a majority of the Court today) that when the Government spends money for religious purposes a taxpayer's injury is serious and concrete enough to be "judicially cognizable," The judgment of sufficient injury takes account of the Madisonian relationship of tax money and conscience, 2588 but it equally reflects the Founders' pragmatic "conviction that individual religious liberty could be achieved best under a government which was stripped of all power to tax, to support, or otherwise to assist any or all religions," 91 L. Ed. 7 and the realization continuing to the modern day that favoritism for religion "`sends the message to nonadherents "that they are outsiders, not full members of the political community,"'" McCreary 125 S. Ct. 2, in turn quoting ; omissions in original).[5] Because the taxpayers in this case have alleged the type of injury this Court has seen as sufficient for standing, I would affirm.	2,063
Justice Ginsburg	majority	false	Golan v. Holder	2012-01-18	null	https://www.courtlistener.com/opinion/2959739/golan-v-holder/	https://www.courtlistener.com/api/rest/v3/clusters/2959739/	2,012	2011-015	1	6	2	The Berne Convention for the Protection of Literary and Artistic Works (Berne Convention or Berne), which took effect in 1886, is the principal accord governing interna- tional copyright relations. Latecomer to the international copyright regime launched by Berne, the United States joined the Convention in 1989. To perfect U. S. implemen- tation of Berne, and as part of our response to the Uru- guay Round of multilateral trade negotiations, Congress, in 1994, gave works enjoying copyright protection abroad the same full term of protection available to U. S. works. Congress did so in §514 of the Uruguay Round Agree- ments Act (URAA), which grants copyright protection to preexisting works of Berne member countries, protected in their country of origin, but lacking protection in the United States for any of three reasons: The United States did not protect works from the country of origin at the time of publication; the United States did not protect sound record- ings fixed before 1972; or the author had failed to comply with U. S. statutory formalities (formalities Congress no longer requires as prerequisites to copyright protection). The URAA accords no protection to a foreign work after 2 GOLAN v. HOLDER Opinion of the Court its full copyright term has expired, causing it to fall into the public domain, whether under the laws of the country of origin or of this country. Works encompassed by §514 are granted the protection they would have enjoyed had the United States maintained copyright relations with the author’s country or removed formalities incompatible with Berne. Foreign authors, however, gain no credit for the protection they lacked in years prior to §514’s enactment. They therefore enjoy fewer total years of exclusivity than do their U. S. counterparts. As a consequence of the barri- ers to U. S. copyright protection prior to the enactment of §514, foreign works “restored” to protection by the meas- ure had entered the public domain in this country. To cushion the impact of their placement in protected status, Congress included in §514 ameliorating accommodations for parties who had exploited affected works before the URAA was enacted. Petitioners include orchestra conductors, musicians, pub- lishers, and others who formerly enjoyed free access to works §514 removed from the public domain. They main- tain that the Constitution’s Copyright and Patent Clause, Art. I, §8, cl. 8, and First Amendment both decree the invalidity of §514. Under those prescriptions of our high- est law, petitioners assert, a work that has entered the public domain, for whatever reason, must forever remain there. In accord with the judgment of the Tenth Circuit, we conclude that §514 does not transgress constitutional limitations on Congress’ authority. Neither the Copyright and Patent Clause nor the First Amendment, we hold, makes the public domain, in any and all cases, a territory that works may never exit. I A Members of the Berne Union agree to treat authors from other member countries as well as they treat their own. Cite as: 565 U. S. ____ (2012) 3 Opinion of the Court Berne Convention, Sept. 9, 1886, as revised at Stockholm on July 14, 1967, Art. 1, 5(1), 828 U. N. T. S. 221, 225, 231–233. Nationals of a member country, as well as any author who publishes in one of Berne’s 164 member states, thus enjoy copyright protection in nations across the globe. Art. 2(6), 3. Each country, moreover, must afford at least the minimum level of protection specified by Berne. The copyright term must span the author’s lifetime, plus at least 50 additional years, whether or not the author has complied with a member state’s legal formalities. Art. 5(2), 7(1). And, as relevant here, a work must be protected abroad unless its copyright term has expired in either the country where protection is claimed or the country of origin. Art. 18(1)–(2).1 A different system of transnational copyright protection long prevailed in this country. Until 1891, foreign works were categorically excluded from Copyright Act protection. Throughout most of the 20th century, the only eligible foreign authors were those whose countries granted recip- rocal rights to U. S. authors and whose works were print —————— 1 Article 18 of the Berne Convention provides: “(1) This Convention shall apply to all works which, at the moment of its coming into force, have not yet fallen into the public domain in the country of origin through the expiry of the term of protection. “(2) If, however, through the expiry of the term of protection which was previously granted, a work has fallen into the public domain of the country where protection is claimed, that work shall not be protected anew. “(3) The application of this principle shall be subject to any provisions contained in special conventions to that effect existing or to be conclud- ed between countries of the Union. In the absence of such provisions, the respective countries shall determine, each in so far as it is con- cerned, the conditions of application of this principle. “(4) The preceding provisions shall also apply in the case of new accessions to the Union and to cases in which protection is extended by the application of Article 7 or by the abandonment of reservations.” 828 U. N. T. S. 251. 4 GOLAN v. HOLDER Opinion of the Court ed in the United States. See Act of Mar. 3, 1891, §3, 13, 26 Stat. 1107, 1110; Patry, The United States and Inter- national Copyright Law, 40 Houston L. Rev. 749, 750 (2003).2 For domestic and foreign authors alike, protection hinged on compliance with notice, registration, and re- newal formalities. The United States became party to Berne’s multilateral, formality-free copyright regime in 1989. Initially, Con- gress adopted a “minimalist approach” to compliance with the Convention. H. R. Rep. No. 100–609, p. 7 (1988) (here- inafter BCIA House Report). The Berne Convention Im- plementation Act of 1988 (BCIA), 102 Stat. 2853, made “only those changes to American copyright law that [were] clearly required under the treaty’s provisions,” BCIA House Report, at 7. Despite Berne’s instruction that member countries—including “new accessions to the Union”— protect foreign works under copyright in the country of origin, Art. 18(1) and (4), 828 U. N. T. S., at 251, the BCIA accorded no protection for “any work that is in the public domain in the United States,” §12, 102 Stat. 2860. Protection of future foreign works, the BCIA indicated, satisfied Article 18. See §2(3), 102 Stat. 2853 (“The amendments made by this Act, together with the law as it exists on the date of the enactment of this Act, satisfy the obligations of the United States in adhering to the Berne Convention . . . .”). Congress indicated, however, that it —————— 2 As noted by the Government’s amici, the United States excluded foreign works from copyright not to swell the number of unprotected works available to the consuming public, but to favor domestic publish- ing interests that escaped paying royalties to foreign authors. See Brief for International Publishers Association et al. as Amici Curiae 8–15. This free-riding, according to Senator Jonathan Chace, champion of the 1891 Act, made the United States “the Barbary coast of literature” and its people “the buccaneers of books.” S. Rep. No. 622, 50th Cong., 1st Sess., p. 2 (1888). Cite as: 565 U. S. ____ (2012) 5 Opinion of the Court had not definitively rejected “retroactive” protection for preexisting foreign works; instead it had punted on this issue of Berne’s implementation, deferring consideration until “a more thorough examination of Constitutional, commercial, and consumer considerations is possible.” BCIA House Report, at 51, 52.3 The minimalist approach essayed by the United States did not sit well with other Berne members.4 While negoti- —————— 3 See also S. Rep. No. 103–412, p. 225 (1994) (“While the United States declared its compliance with the Berne Convention in 1989, it never addressed or enacted legislation to implement Article 18 of the Convention.”); Memorandum from Chris Schroeder, Counselor to the Assistant Attorney General, Office of Legal Counsel, Dept. of Justice (DOJ), to Ira S. Shapiro, General Counsel, Office of the U. S. Trade Representative (July 29, 1994), in W. Patry, Copyright and the GATT, p. C–15 (1995) (“At the time Congress was debating the BCIA, it reserved the issue of removing works from the public domain.”); Gen- eral Agreement on Tariffs and Trade (GATT): Intellectual Property Provisions, Joint Hearing before the Subcommittee on Intellectual Property and Judicial Administration of the House Committee on the Judiciary and the Subcommittee on Patents, Copyrights and Trade- marks of the Senate Committee on the Judiciary, 103d Cong., 2d Sess., p. 120 (1994) (URAA Joint Hearing) (app. to statement of Bruce A. Lehman, Assistant Secretary of Commerce and Commissioner of Patents and Trademarks (Commerce Dept.)) (“When the United States adhered to the Berne Convention, Congress . . . acknowledged that the possibility of restoring copyright protection for foreign works that had fallen into the public domain in the United States for failure to comply with formalities was an issue that merited further discussion.”). 4 The dissent implicitly agrees that, whatever tentative conclusion Congress reached in 1988, Article 18 requires the United States to “protect the foreign works at issue,” at least absent a special conven- tion the United States did not here negotiate. Post, at 22. See also post, at 23 (citing Gervais, Golan v. Holder: A Look at the Con- straints Imposed by the Berne Convention, 64 Vand. L. Rev. En Banc 147, 151–152 (2011)); id., at 152 (“[T]he Convention clearly requires that some level of protection be given to foreign authors whose works have entered the public domain (other than by expiration of previous copyright).”). Accord S. Ricketson, The Berne Convention for the Protection of Literary and Artistic Works 1886–1986, p. 675 (1987) 6 GOLAN v. HOLDER Opinion of the Court ations were ongoing over the North American Free Trade Agreement (NAFTA), Mexican authorities complained about the United States’ refusal to grant protection, in accord with Article 18, to Mexican works that remained under copyright domestically. See Intellectual Property and International Issues, Hearings before the Subcommit- tee on Intellectual Property and Judicial Administration, House Committee on the Judiciary, 102d Cong., 1st Sess., 168 (1991) (statement of Ralph Oman, U. S. Register of Copyrights).5 The Register of Copyrights also reported “questions” from Turkey, Egypt, and Austria. Ibid. Thai- land and Russia balked at protecting U. S. works, copy- righted here but in those countries’ public domains, until the United States reciprocated with respect to their au- thors’ works. URAA Joint Hearing 137 (statement of Ira S. Shapiro, General Counsel, Office of the U. S. Trade Representative (USTR)); id., at 208 (statement of Profes- sor Shira Perlmutter); id., at 291 (statement of Jason S. Berman, Recording Industry Association of America (RIAA)).6 —————— (“There is no basis on which [protection of existing works under Article 18] can be completely denied. The conditions and reservations,” au- thorized by Article 18(3) [and stressed by the dissent, post, at 23–24] are of “limited” and “transitional” duration and “would not be permitted to deny [protection] altogether in relation to a particular class . . . of works.”). 5 NAFTA ultimately included a limited retroactivity provision—a precursor to §514 of the URAA—granting U. S. copyright protection to certain Mexican and Canadian films. These films had fallen into the public domain, between 1978 and 1988, for failure to meet U. S. notice requirements. See North American Free Trade Agreement Implemen- tation Act, §334, 107 Stat. 2115; Brief for Franklin Pierce Center for Intellectual Property as Amicus Curiae 14–16. One year later, Con- gress replaced this provision with the version of 17 U.S. C. §104A at issue here. See 3 M. Nimmer & D. Nimmer, Copyright §9A.03, 9A.04, pp. 9A–17, 9A–22 (2011) (hereinafter Nimmer). 6 This tension between the United States and its new Berne counter Cite as: 565 U. S. ____ (2012) 7 Opinion of the Court Berne, however, did not provide a potent enforcement mechanism. The Convention contemplates dispute resolu- tion before the International Court of Justice. Art. 33(1). But it specifies no sanctions for noncompliance and allows parties, at any time, to declare themselves “not . . . bound” by the Convention’s dispute resolution provision. Art. 33(2)–(3) 828 U. N. T. S., at 277. Unsurprisingly, no en- forcement actions were launched before 1994. D. Gervais, The TRIPS Agreement 213, and n. 134 (3d ed. 2008). Although “several Berne Union Members disagreed with [our] interpretation of Article 18,” the USTR told Con- gress, the Berne Convention did “not provide a meaningful dispute resolution process.” URAA Joint Hearing 137 (statement of Shapiro). This shortcoming left Congress “free to adopt a minimalist approach and evade Article 18.” Karp, Final Report, Berne Article 18 Study on Retro- active United States Copyright Protection for Berne and other Works, 20 Colum.-VLA J. L. & Arts 157, 172 (1996). The landscape changed in 1994. The Uruguay round of multilateral trade negotiations produced the World Trade Organization (WTO) and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).7 The United States joined both. TRIPS mandates, on pain of WTO enforcement, implementation of Berne’s first 21 articles. TRIPS, Art. 9.1, 33 I. L. M. 1197, 1201 (requiring adherence to all but the “moral rights” provisions of Arti- cle 6bis). The WTO gave teeth to the Convention’s re- quirements: Noncompliance with a WTO ruling could —————— parties calls into question the dissent’s assertion that, despite the 1988 Act’s minimalist approach, “[t]he United States obtained the benefits of Berne for many years.” Post, at 22–23. During this six-year period, Congress had reason to doubt that U. S. authors enjoyed the full benefits of Berne membership. 7 Marrakesh Agreement Establishing the World Trade Organization, Apr. 15, 1994, 1867 U. N. T. S. 154. 8 GOLAN v. HOLDER Opinion of the Court subject member countries to tariffs or cross-sector retalia- tion. See Gervais, supra, at 213; 7 W. Patry, Copyright §24:1, pp. 24–8 to 24–9 (2011). The specter of WTO en- forcement proceedings bolstered the credibility of our trading partners’ threats to challenge the United States for inadequate compliance with Article 18. See URAA Joint Hearing 137 (statement of Shapiro, USTR) (“It is likely that other WTO members would challenge the current U. S. implementation of Berne Article 18 under [WTO] procedures.”).8 Congress’ response to the Uruguay agreements put to rest any questions concerning U. S. compliance with Arti- cle 18. Section 514 of the URAA, 108 Stat. 4976 (codified at 17 U.S. C. §104A, 109(a)),9 extended copyright to works that garnered protection in their countries of origin,10 but —————— 8 Proponents of prompt congressional action urged that avoiding a trade enforcement proceeding—potentially the WTO’s first—would be instrumental in preserving the United States’ “reputation as a world leader in the copyright field.” URAA Joint Hearing 241 (statement of Eric Smith, International Intellectual Property Alliance (IIPA)). In this regard, U. S. negotiators reported that widespread perception of U. S. noncompliance was undermining our leverage in copyright negotia- tions. Unimpeachable adherence to Berne, Congress was told, would help ensure enhanced foreign protection, and hence profitable dissemi- nation, for existing and future U. S. works. See id., at 120 (app. to statement of Lehman, Commerce Dept.) (“Clearly, providing for [retro- active] protection for existing works in our own law will improve our position in future negotiations.”); id., at 268 (statement of Berman, RIAA). 9 Title 17 U.S. C. §104A is reproduced in full in an appendix to this opinion. 10 Works from most, but not all, foreign countries are eligible for pro- tection under §514. The provision covers only works that have “at least one author or rightholder who was, at the time the work was created, a national or domiciliary of an eligible country.” 17 U.S. C. §104A(h)(6)(D). An “eligible country” includes any “nation, other than the United States, that—(A) becomes a WTO member country after the date of the enactment of the [URAA]; [or] (B) on such date of enactment Cite as: 565 U. S. ____ (2012) 9 Opinion of the Court had no right to exclusivity in the United States for any of three reasons: lack of copyright relations between the country of origin and the United States at the time of publication; lack of subject-matter protection for sound recordings fixed before 1972; and failure to comply with U. S. statutory formalities (e.g., failure to provide notice of copyright status, or to register and renew a copyright). See §104A(h)(6)(B)–(C).11 Works that have fallen into the public domain after the —————— is, or after such date of enactment becomes, a nation adhering to the Berne Convention.” §104A(h)(3). As noted above, see supra, at 3, 164 countries adhere to the Berne Convention. World Intellec- tual Property Organization, Contracting Parties: Berne Convention, www.wipo.int/treaties (as visited Jan. 13, 2012, and in Clerk of Court’s case file). 11 From the first Copyright Act until late in the 20th century, Con- gress conditioned copyright protection on compliance with certain statutory formalities. The most notable required an author to register her work, renew that registration, and affix to published copies notice of copyrighted status. The formalities drew criticism as a trap for the unwary. See, e.g., 2 Nimmer §7.01[A], p. 7–8; Doyle, Cary, McCannon, & Ringer, Notice of Copyright, Study No. 7, p. 46 (1957), reprinted in 1 Studies on Copyright 229, 272 (1963). In 1976, Congress eliminated the registration renewal requirement for future works. Copyright Act of 1976, §302, 408, 90 Stat. 2572, 2580. In 1988, it repealed the mandatory notice prerequisite. BCIA §7, 102 Stat. 2857. And in 1992, Congress made renewal automatic for works still in their first term of protection. Copyright Amendments Act of 1992, 106 Stat. 264–266. The Copyright Act retains, however, incen- tives for authors to register their works and provide notice of the works’ copyrighted status. See, e.g., 17 U.S. C. §405(b) (precluding actual and statutory damages against “innocent infringers” of a work that lacked notice of copyrighted status); §411(a) (requiring registration of U. S. “work[s],” but not foreign works, before an owner may sue for infringe- ment). The revisions successively made accord with Berne Convention Article 5(2), which proscribes application of copyright formalities to foreign authors. Berne, however, affords domestic authors no escape from domestic formalities. See Art. 5(3) (protection within country of origin is a matter of domestic law). 10 GOLAN v. HOLDER Opinion of the Court expiration of a full copyright term—either in the United States or the country of origin—receive no further protec- tion under §514. Ibid.12 Copyrights “restored”13 under URAA §514 “subsist for the remainder of the term of copyright that the work would have otherwise been grant- ed . . . if the work never entered the public domain.” §104A(a)(1)(B). Prospectively, restoration places foreign works on an equal footing with their U. S. counterparts; assuming a foreign and domestic author died the same day, their works will enter the public domain simultane- ously. See §302(a) (copyrights generally expire 70 years after the author’s death). Restored works, however, re- ceive no compensatory time for the period of exclusivity they would have enjoyed before §514’s enactment, had they been protected at the outset in the United States. Their total term, therefore, falls short of that available to similarly situated U. S. works. The URAA’s disturbance of the public domain hardly escaped Congress’ attention. Section 514 imposed no liability for any use of foreign works occurring before restoration. In addition, anyone remained free to copy and use restored works for one year following §514’s enact- ment. See 17 U.S. C. §104A(h)(2)(A). Concerns about §514’s compatibility with the Fifth Amendment’s Takings —————— 12 Title 17 U.S. C. §104A(h)(6)(B) defines a “restored work” to exclude “an original work of authorship” that is “in the public domain in its source country through expiration of [its] term of protection.” This provision tracks Berne’s denial of protection for any work that has “fallen into the public domain in the country of origin through the expiry of the term of protection.” Art. 18(1), 828 U. N. T. S., at 251. 13 Restoration is a misnomer insofar as it implies that all works protected under §104A previously enjoyed protection. Each work in the public domain because of lack of national eligibility or subject- matter protection, and many that failed to comply with formalities, never enjoyed U. S. copyright protection. See, e.g., 3 Nimmer §9A.04[A][1][b][iii], at 9A–26, and n. 29.4. Cite as: 565 U. S. ____ (2012) 11 Opinion of the Court Clause led Congress to include additional protections for “reliance parties”—those who had, before the URAA’s enactment, used or acquired a foreign work then in the public domain. See §104A(h)(3)–(4).14 Reliance parties may continue to exploit a restored work until the owner of the restored copyright gives notice of intent to enforce— either by filing with the U. S. Copyright Office within two years of restoration, or by actually notifying the reliance party. §104A(c), (d)(2)(A)(i), and (B)(i). After that, reli- ance parties may continue to exploit existing copies for a grace period of one year. §104A(d)(2)(A)(ii), and (B)(ii). Finally, anyone who, before the URAA’s enactment, creat- ed a “derivative work” based on a restored work may indefinitely exploit the derivation upon payment to the copyright holder of “reasonable compensation,” to be set by a district judge if the parties cannot agree. §104A(d)(3). B In 2001, petitioners filed this lawsuit challenging §514. They maintain that Congress, when it passed the URAA, exceeded its authority under the Copyright Clause and transgressed First Amendment limitations.15 The District —————— 14 A reliance party must have used the work in a manner that would constitute infringement had a valid copyright been in effect. See §104A(h)(4)(A). After restoration, the reliance party is limited to her previous uses. A performer of a restored work, for example, cannot, post-restoration, venture to sell copies of the script. See 3 Nimmer §9A.04[C][1][a], at 9A–45 to 9A–46. 15 Petitioners’ complaint also challenged the constitutionality of the Copyright Term Extension Act, 112 Stat. 2827, which added 20 years to the duration of existing and future copyrights. After this Court rejected a similar challenge in Eldred v. Ashcroft, 537 U.S. 186 (2003), the District Court dismissed this portion of petitioners’ suit on the plead- ings, Golan v. Ashcroft, 310 F. Supp. 2d 1215 (D. Colo. 2004). The Tenth Circuit affirmed, Golan v. Gonzales, 501 F.3d 1179 (2007), and petitioners do not attempt to revive that claim in this Court, Pet. for Cert. 7, n. 2. Neither have petitioners challenged the District Court’s 12 GOLAN v. HOLDER Opinion of the Court Court granted the Attorney General’s motion for summary judgment. Golan v. Gonzales, No. Civ. 01–B–1854, 2005 WL 914754 (D. Colo., Apr. 20, 2005). In rejecting petition- ers’ Copyright Clause argument, the court stated that Congress “has historically demonstrated little compunc- tion about removing copyrightable materials from the public domain.” Id., at 14. The court next declined to part from “the settled rule that private censorship via copyright enforcement does not implicate First Amend- ment concerns.” Id., at 17. The Court of Appeals for the Tenth Circuit affirmed in part. Golan v. Gonzales, 501 F.3d 1179 (2007). The public domain, it agreed, was not a “threshold that Con- gress” was powerless to “traverse in both directions.” Id., at 1187 (internal quotations marks omitted). But §514, as the Court of Appeals read our decision in Eldred v. Ash- croft, 537 U.S. 186 (2003), required further First Amend- ment inspection, 501 F.3d, at 1187. The measure “ ‘al- tered the traditional contours of copyright protection,’ ” the court said—specifically, the “bedrock principle” that once works enter the public domain, they do not leave. Ibid. (quoting Eldred, 537 U. S., at 221). The case was remand- ed with an instruction to the District Court to address the First Amendment claim in light of the Tenth Circuit’s opinion. On remand, the District Court’s starting premise was uncontested: Section 514 does not regulate speech on the basis of its content; therefore the law would be upheld if “narrowly tailored to serve a significant government inter- est.” 611 F. Supp. 2d 1165, 1170–1171 (Colo. 2009) (quot- ing Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)). Summary judgment was due petitioners, the —————— entry of summary judgment for the Government on the claim that §514 violates the substantive component of the Due Process Clause. Cite as: 565 U. S. ____ (2012) 13 Opinion of the Court court concluded, because §514’s constriction of the public domain was not justified by any of the asserted federal interests: compliance with Berne, securing greater protec- tion for U. S. authors abroad, or remediation of the inequi- table treatment suffered by foreign authors whose works lacked protection in the United States. 611 F. Supp. 2d, at 1172–1177. The Tenth Circuit reversed. Deferring to Congress’ predictive judgments in matters relating to foreign affairs, the appellate court held that §514 survived First Amend- ment scrutiny. Specifically, the court determined that the law was narrowly tailored to fit the important government aim of protecting U. S. copyright holders’ interests abroad. 609 F.3d 1076 (2010). We granted certiorari to consider petitioners’ challenge to §514 under both the Copyright Clause and the First Amendment, 562 U. S. ___ (2011), and now affirm. II We first address petitioners’ argument that Congress lacked authority, under the Copyright Clause, to enact §514. The Constitution states that “Congress shall have Power . . . [t]o promote the Progress of Science . . . by securing for limited Times to Authors . . . the exclusive Right to their . . . Writings.” Art. I, §8, cl. 8. Petitioners find in this grant of authority an impenetrable barrier to the extension of copyright protection to authors whose writings, for whatever reason, are in the public domain. We see no such barrier in the text of the Copyright Clause, historical practice, or our precedents. A The text of the Copyright Clause does not exclude appli- cation of copyright protection to works in the public do- main. Symposium, Congressional Power and Limitations Inherent in the Copyright Clause, 30 Colum. J. L. & Arts 14 GOLAN v. HOLDER Opinion of the Court 259, 266 (2007). Petitioners’ contrary argument relies primarily on the Constitution’s confinement of a copy- right’s lifespan to a “limited Tim[e].” “Removing works from the public domain,” they contend, “violates the ‘lim- ited [t]imes’ restriction by turning a fixed and predictable period into one that can be reset or resurrected at any time, even after it expires.” Brief for Petitioners 22. Our decision in Eldred is largely dispositive of petition- ers’ limited-time argument. There we addressed the question whether Congress violated the Copyright Clause when it extended, by 20 years, the terms of existing copy- rights. 537 U.S., at 192–193 (upholding Copyright Term Extension Act (CTEA)). Ruling that Congress acted with- in constitutional bounds, we declined to infer from the text of the Copyright Clause “the command that a time pre- scription, once set, becomes forever ‘fixed’ or ‘inalterable.’ ” Id., at 199. “The word ‘limited,’ ” we observed, “does not convey a meaning so constricted.” Ibid. Rather, the term is best understood to mean “confine[d] within certain bounds,” “restrain[ed],” or “circumscribed.” Ibid. (internal quotation marks omitted). The construction petitioners tender closely resembles the definition rejected in Eldred and is similarly infirm. The terms afforded works restored by §514 are no less “limited” than those the CTEA lengthened. In light of Eldred, petitioners do not here contend that the term Congress has granted U. S. authors—their lifetimes, plus 70 years—is unlimited. See 17 U.S. C. §302(a). Nor do petitioners explain why terms of the same duration, as applied to foreign works, are not equally “circumscribed” and “confined.” See Eldred, 537 U.S., at 199. Indeed, as earlier noted, see supra, at 2, 10, the copyrights of restored foreign works typically last for fewer years than those of their domestic counterparts. The difference, petitioners say, is that the limited time had already passed for works in the public domain. What Cite as: 565 U. S. ____ (2012) 15 Opinion of the Court was that limited term for foreign works once excluded from U. S. copyright protection? Exactly “zero,” petition- ers respond. Brief for Petitioners 22 (works in question “received a specific term of protection . . . sometimes ex- pressly set to zero”; “at the end of that period,” they “en- tered the public domain”); Tr. of Oral Arg. 52 (by “refusing to provide any protection for a work,” Congress “set[s] the term at zero,” and thereby “tell[s] us when the end has come”). We find scant sense in this argument, for surely a “limited time” of exclusivity must begin before it may end.16 Carried to its logical conclusion, petitioners persist, the Government’s position would allow Congress to institute a second “limited” term after the first expires, a third after that, and so on. Thus, as long as Congress legislated in installments, perpetual copyright terms would be achieva- ble. As in Eldred, the hypothetical legislative misbehavior petitioners posit is far afield from the case before us. See 537 U.S., at 198–200, 209–210. In aligning the United States with other nations bound by the Berne Convention, and thereby according equitable treatment to once dis- favored foreign authors, Congress can hardly be charged with a design to move stealthily toward a regime of per- petual copyrights. B Historical practice corroborates our reading of the Copy- right Clause to permit full U. S. compliance with Berne. Undoubtedly, federal copyright legislation generally has not affected works in the public domain. Section 514’s disturbance of that domain, petitioners argue, distin- —————— 16 Cf.3 Nimmer §9A.02[A][2], at 9A–11, n. 28 (“[I]t stretches the language of the Berne Convention past the breaking point to posit that following ‘expiry of the zero term’ the . . . work need not be resurrected.”). 16 GOLAN v. HOLDER Opinion of the Court guishes their suit from Eldred’s. In adopting the CTEA, petitioners note, Congress acted in accord with “an unbro- ken congressional practice” of granting pre-expiration term extensions, 537 U.S., at 200. No comparable prac- tice, they maintain, supports §514. On occasion, however, Congress has seen fit to protect works once freely available. Notably, the Copyright Act of 1790 granted protection to many works previously in the public domain. Act of May 31, 1790 (1790 Act), §1, 1 Stat. 124 (covering “any map, chart, book, or books already printed within these United States”). Before the Act launched a uniform national system, three States provided no statutory copyright protection at all.17 Of those that did afford some protection, seven failed to protect maps;18 eight did not cover previously published books;19 and all ten denied protection to works that failed to comply with formalities.20 The First Congress, it thus appears, did not view the public domain as inviolate. As we have recog- nized, the “construction placed upon the Constitution by [the drafters of] the first [copyright] act of 1790 and the act of 1802 . . . men who were contemporary with [the Constitution’s] formation, many of whom were members of the convention which framed it, is of itself entitled to very great weight.” Burrow-Giles Lithographic Co. v. Sarony, —————— 17 See B. Bugbee, Genesis of American Patent and Copyright Law 123–124 (1967) (hereinafter Bugbee) (Delaware, Maryland, and Pennsylvania). 18 See 1783 Mass. Acts p. 236; 1783 N. J. Laws p. 47; 1783 N. H. Laws p. 521; 1783 Rawle I. Laws pp. 6–7; 1784 S. C. Acts p. 49; 1785 Va. Acts ch. VI; 1786 N. Y. Laws p. 298. 19 1783 Conn. Pub. Acts no. 617; 1783 N. J. Laws p. 47; 1785 N. C. Laws p. 563; 1786 Ga. Laws p. 323. In four States, copyright enforce- ment was restricted to works “not yet printed” or “hereinafter pub- lished.” 1783 Mass. Acts p. 236; 1783 N. H. Laws p. 521; 1783 Rawle I. Laws pp. 6–7; 1784 S. C. Acts p. 49. 20 See Bugbee 109–123. Cite as: 565 U. S. ____ (2012) 17 Opinion of the Court 111 U.S. 53, 57 (1884).21 Subsequent actions confirm that Congress has not un- derstood the Copyright Clause to preclude protection for existing works. Several private bills restored the copy- rights of works that previously had been in the public domain. See Act of Feb. 19, 1849 (Corson Act), ch. 57, 9 Stat. 763; Act of June 23, 1874 (Helmuth Act), ch. 534, 18 Stat. 618; Act of Feb. 17, 1898 (Jones Act), ch. 29, 30 Stat. 1396. These bills were unchallenged in court. Analogous patent statutes, however, were upheld in litigation.22 In 1808, Congress passed a private bill restor- ing patent protection to Oliver Evans’ flour mill. When Evans sued for infringement, first Chief Justice Marshall in the Circuit Court, Evans v. Jordan, 8 F. Cas. 872 (No. 4,564) (Va. 1813), and then Justice Bushrod Washington for this Court, Evans v. Jordan, 9 Cranch 199 (1815), upheld the restored patent’s validity. After the patent’s expiration, the Court said, “a general right to use [Evans’] discovery was not so vested in the public” as to allow the defendant to continue using the machinery, which he had —————— 21 The parties debate the extent to which the First Congress removed works from the public domain. We have held, however, that at least some works protected by the 1790 Act previously lacked protection. In Wheaton v. Peters, 8 Pet. 591 (1834), the Court ruled that before enact- ment of the 1790 Act, common-law copyright protection expired upon first publication. Id., at 657, 663. Thus published works covered by the 1790 Act previously would have been in the public domain unless protected by state statute. Had the founding generation perceived the constitutional boundary petitioners advance today, the First Congress could have designed a prospective scheme that left the public domain undisturbed. Accord Luck’s Music Library, Inc. v. Gonzales, 407 F.3d 1262, 1265 (CADC 2005) (Section 514 does not offend the Copyright Clause because, inter alia, “evidence from the First Congress,” as confirmed by Wheaton, “points toward constitutionality.”). 22 Here, as in Eldred, “[b]ecause the Clause empowering Congress to confer copyrights also authorizes patents, congressional practice with respect to patents informs our inquiry.” 537 U.S., at 201. 18 GOLAN v. HOLDER Opinion of the Court constructed between the patent’s expiration and the bill’s passage. Id., at 202. See also Blanchard v. Sprague, 3 F. Cas. 648, 650 (No. 1,518) (CC Mass. 1839) (Story, J.) (“I never have entertained any doubt of the constitutional authority of congress” to “give a patent for an invention, which . . . was in public use and enjoyed by the community at the time of the passage of the act.”). This Court again upheld Congress’ restoration of an invention to protected status in McClurg v. Kingsland, 1 How. 202 (1843). There we enforced an 1839 amendment that recognized a patent on an invention despite its prior use by the inventor’s employer. Absent such dispensation, the employer’s use would have rendered the invention unpatentable, and therefore open to exploitation without the inventor’s leave. Id., at 206–209. Congress has also passed generally applicable legisla- tion granting patents and copyrights to inventions and works that had lost protection. An 1832 statute author- ized a new patent for any inventor whose failure, “by inadvertence, accident, or mistake,” to comply with statu- tory formalities rendered the original patent “invalid or inoperative.” Act of July 3, §3, 4 Stat. 559. An 1893 measure similarly allowed authors who had not timely deposited their work to receive “all the rights and privileg- es” the Copyright Act affords, if they made the required deposit by March 1, 1893. Act of Mar. 3, ch. 215, 27 Stat. 743.23 And in 1919 and 1941, Congress authorized the President to issue proclamations granting protection to foreign works that had fallen into the public domain dur- ing World Wars I and II. See Act of Dec. 18, 1919, ch. 11, —————— 23 Section 514 is in line with these measures; like them, it accords protection to works that had lapsed into the public domain because of failure to comply with U. S. statutory formalities. See supra, at 9, and n. 11. Cite as: 565 U. S. ____ (2012) 19 Opinion of the Court 41 Stat. 368; Act of Sept. 25, 1941, ch. 421, 55 Stat. 732.24 Pointing to dictum in Graham v. John Deere Co. of Kansas City, 383 U.S. 1 (1966), petitioners would have us look past this history. In Graham, we stated that “Con- gress may not authorize the issuance of patents whose effects are to remove existent knowledge from the public domain, or to restrict free access to materials already available.” Id., at 6; post, at 15. But as we explained in Eldred, this passage did not speak to the constitutional limits on Congress’ copyright and patent authority. Ra- ther, it “addressed an invention’s very eligibility for patent protection.” 537 U.S., at 202, n. 7. Installing a federal copyright system and ameliorating the interruptions of global war, it is true, presented Con- gress with extraordinary situations. Yet the TRIPS ac- cord, leading the United States to comply in full measure with Berne, was also a signal event. See supra, at 7–8; cf. Eldred, 537 U.S., at 259, 264–265 (BREYER, J., dissenting) (acknowledging importance of international uniformity advanced by U. S. efforts to conform to the Berne Conven- tion). Given the authority we hold Congress has, we will not second-guess the political choice Congress made be- tween leaving the public domain untouched and embrac- ing Berne unstintingly. Cf. id., at 212–213. —————— 24 Legislation of this order, petitioners argue, is best understood as an exercise of Congress’ power to remedy excusable neglect. Even so, the remedy sheltered creations that, absent congressional action, would have been open to free exploitation. Such action, according to petition- ers’ dominant argument, see supra, at 13–14, is ever and always impermissible. Accord Luck’s Music Library, 407 F.3d, at 1265–1266 (“Plaintiffs urge that [the 1790 Act and the wartime legislation] simply extended the time limits for filing and [did] not purport to modify the prohibition on removing works from the public domain. But to the extent that potential copyright holders failed to satisfy procedural requirements, such works”—like those protected by §514—“would necessarily have already entered the public domain . . . .”). 20 GOLAN v. HOLDER Opinion of the Court C Petitioners’ ultimate argument as to the Copyright and Patent Clause concerns its initial words. Congress is empowered to “promote the Progress of Science and useful Arts” by enacting systems of copyright and patent protec- tion. U. S. Const., Art. I, §8, cl. 8. Perhaps counterintui- tively for the contemporary reader, Congress’ copyright authority is tied to the progress of science; its patent authority, to the progress of the useful arts. See Graham, 383 U.S., at 5, and n. 1; Evans, 8 F. Cas., at 873 (Marshall, J.). The “Progress of Science,” petitioners acknowledge, refers broadly to “the creation and spread of knowledge and learning.” Brief for Petitioners 21; accord post, at 1. They nevertheless argue that federal legislation cannot serve the Clause’s aim unless the legislation “spur[s] the creation of . . . new works.” Brief for Petitioners 24; accord post, at 1–2, 8, 17. Because §514 deals solely with works already created, petitioners urge, it “provides no plausible incentive to create new works” and is therefore invalid. Reply Brief 4.25 The creation of at least one new work, however, is not the sole way Congress may promote knowledge and learn- ing. In Eldred, we rejected an argument nearly identical to the one petitioners rehearse. The Eldred petitioners urged that the “CTEA’s extension of existing copyrights categorically fails to ‘promote the Progress of Science,’ . . . because it does not stimulate the creation of new works.” 537 U.S., at 211–212. In response to this argument, we —————— 25 But see Brief for Motion Picture Association of America as Amicus Curiae 27 (observing that income from existing works can finance the creation and publication of new works); Eldred, 537 U.S., at 208, n. 15 (noting that Noah Webster “supported his entire family from the earnings on his speller and grammar during the twenty years he took to complete his dictionary” (internal quotation marks omitted)). Cite as: 565 U. S. ____ (2012) 21 Opinion of the Court held that the Copyright Clause does not demand that each copyright provision, examined discretely, operate to induce new works. Rather, we explained, the Clause “empowers Congress to determine the intellectual property regimes that, overall, in that body’s judgment, will serve the ends of the Clause.” Id., at 222. And those permissible ends, we held, extended beyond the creation of new works. See id., at 205–206 (rejecting the notion that “ ‘the only way to promote the progress of science [is] to provide incentives to create new works’ ” (quoting Perlmutter, Participation in the International Copyright System as a Means to Pro- mote the Progress of Science and Useful Arts, 36 Loyola (LA) L. Rev. 323, 332 (2002))).26 Even were we writing on a clean slate, petitioners’ argument would be unavailing. Nothing in the text of the Copyright Clause confines the “Progress of Science” exclu- sively to “incentives for creation.” Id., at 324, n. 5 (inter- nal quotation marks omitted). Evidence from the found- ing, moreover, suggests that inducing dissemination—as opposed to creation—was viewed as an appropriate means to promote science. See Nachbar, Constructing Copy- right’s Mythology, 6 Green Bag 2d 37, 44 (2002) (“The scope of copyright protection existing at the time of the framing,” trained as it was on “publication, not creation,” “is inconsistent with claims that copyright must promote creative activity in order to be valid.” (internal quotation marks omitted)). Until 1976, in fact, Congress made “federal copyright contingent on publication[,] [thereby] —————— 26 The dissent also suggests, more tentatively, that at least where copyright legislation extends protection to works previously in the public domain, Congress must counterbalance that restriction with new incentives to create. Post, at 8. Even assuming the public domain were a category of constitutional significance, contra supra, at 13–19, we would not understand “the Progress of Science” to have this contingent meaning. 22 GOLAN v. HOLDER Opinion of the Court providing incentives not primarily for creation,” but for dissemination. Perlmutter, supra, at 324, n. 5. Our deci- sions correspondingly recognize that “copyright supplies the economic incentive to create and disseminate ideas.” Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 558 (1985) (emphasis added). See also Eldred, 537 U.S., at 206.27 Considered against this backdrop, §514 falls comfortably within Congress’ authority under the Copyright Clause. Congress rationally could have concluded that adherence to Berne “promotes the diffusion of knowledge,” Brief for Petitioners 4. A well-functioning international copyright system would likely encourage the dissemination of exist- ing and future works. See URAA Joint Hearing 189 (statement of Professor Perlmutter). Full compliance with Berne, Congress had reason to believe, would expand the foreign markets available to U. S. authors and invigorate protection against piracy of U. S. works abroad, S. Rep. No. 103–412, pp. 224, 225 (1994); URAA Joint Hearing 291 (statement of Berman, RIAA); id., at 244, 247 (state- ment of Smith, IIPA), thereby benefitting copyright- intensive industries stateside and inducing greater investment in the creative process. The provision of incentives for the creation of new works is surely an essential means to advance the spread of knowledge and learning. We hold, however, that it is not the sole means Congress may use “[t]o promote the Pro- gress of Science.” See Perlmutter, supra, at 332 (United States would “lose all flexibility” were the provision of incentives to create the exclusive way to promote the —————— 27 That the same economic incentives might also induce the dissemi- nation of futons, fruit, or Bibles, see post, at 20, is no answer to this evidence that legislation furthering the dissemination of literary property has long been thought a legitimate way to “promote the Progress of Science.” Cite as: 565 U. S. ____ (2012) 23 Opinion of the Court progress of science).28 Congress determined that exem- plary adherence to Berne would serve the objectives of the Copyright Clause. We have no warrant to reject the ra- tional judgment Congress made. III A We next explain why the First Amendment does not inhibit the restoration authorized by §514. To do so, we first recapitulate the relevant part of our pathmarking decision in Eldred. The petitioners in Eldred, like those here, argued that Congress had violated not only the “limited Times” prescription of the Copyright Clause. In addition, and independently, the Eldred petitioners charged, Congress had offended the First Amendment’s freedom of expression guarantee. The CTEA’s 20-year enlargement of a copyright’s duration, we held in Eldred, offended neither provision. Concerning the First Amendment, we recognized that some restriction on expression is the inherent and in- tended effect of every grant of copyright. Noting that the “Copyright Clause and the First Amendment were adopted close in time,” 537 U.S., at 219, we observed that the Framers regarded copyright protection not simply as a limit on the manner in which expressive works may be used. They also saw copyright as an “engine of free ex- pression[:] By establishing a marketable right to the use of —————— 28 The dissent suggests that the “utilitarian view of copyrigh[t]” em- braced by Jefferson, Madison, and our case law sets us apart from continental Europe and inhibits us from harmonizing our copyright laws with those of countries in the civil-law tradition. See post, at 5–6, 22. For persuasive refutation of that suggestion, see Austin, Does the Copyright Clause Mandate Isolationism? 26 Colum. J. L. & Arts 17, 59 (2002) (cautioning against “an isolationist reading of the Copyright Clause that is in tension with . . . America’s international copyright relations over the last hundred or so years”). 24 GOLAN v. HOLDER Opinion of the Court one’s expression, copyright supplies the economic incentive to create and disseminate ideas.” Ibid. (quoting Harper & Row, 471 U.S., at 558 (internal quotation marks omit- ted)); see id., at 546 (“rights conferred by copyright are designed to assure contributors to the store of knowledge a fair return for their labors”). We then described the “traditional contours” of copy- right protection, i.e., the “idea/expression dichotomy” and the “fair use” defense.29 Both are recognized in our juris- prudence as “built-in First Amendment accommodations.” Eldred, 537 U.S., at 219; see Harper & Row, 471 U.S., at 560 (First Amendment protections are “embodied in the Copyright Act’s distinction between copyrightable expres- sion and uncopyrightable facts and ideas,” and in the “latitude for scholarship and comment” safeguarded by the fair use defense). The idea/expression dichotomy is codified at 17 U.S. C. §102(b): “In no case does copyright protec[t] . . . any idea, procedure, process, system, method of operation, concept, principle, or discovery . . . described, explained, illustrat- ed, or embodied in [the copyrighted] work.” “Due to this [idea/expression] distinction, every idea, theory, and fact in a copyrighted work becomes instantly available for public exploitation at the moment of publication”; the author’s expression alone gains copyright protection. Eldred, 537 U.S., at 219; see Harper & Row, 471 U.S., at 556 (“idea/expression dichotomy strike[s] a definitional balance between the First Amendment and the Copyright Act by permitting free communication of facts while still protecting an author’s expression” (internal quotation —————— 29 On the initial appeal in this case, the Tenth Circuit gave an uncon- fined reading to our reference in Eldred to “traditional contours of copyright.” 501 F.3d, at 1187–1196. That reading was incorrect, as we here clarify. Cite as: 565 U. S. ____ (2012) 25 Opinion of the Court marks omitted)). The second “traditional contour,” the fair use defense, is codified at 17 U.S. C. §107: “[T]he fair use of a copyright- ed work, including such use by reproduction in copies . . . , for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copy- right.” This limitation on exclusivity “allows the public to use not only facts and ideas contained in a copyrighted work, but also [the author’s] expression itself in certain circumstances.” Eldred, 537 U.S., at 219; see id., at 220 (“fair use defense affords considerable latitude for scholar- ship and comment, . . . even for parody” (internal quota- tion marks omitted)). Given the “speech-protective purposes and safeguards” embraced by copyright law, see id., at 219, we concluded in Eldred that there was no call for the heightened review petitioners sought in that case.30 We reach the same conclusion here.31 Section 514 leaves undisturbed the “idea/expression” distinction and the “fair use” defense. Moreover, Congress adopted measures to ease the transi- tion from a national scheme to an international copyright regime: It deferred the date from which enforcement runs, and it cushioned the impact of restoration on “reliance parties” who exploited foreign works denied protection before §514 took effect. See supra, at 10–11 (describing 17 U.S. C. §104A(c), (d), and (h)). See also Eldred, 537 U.S., at 220 (describing supplemental allowances and exemp- —————— 30 See Eldred, 537 U.S., at 221 (“Protection of [an author’s original expression from unrestricted exploitation] does not raise the free speech concerns present when the government compels or burdens the com- munication of particular facts or ideas.”). 31Focusing narrowly on the specific problem of orphan works, the dissent overlooks these principal protections against “the dissemination-restricting harms of copyright.” Post, at 14. 26 GOLAN v. HOLDER Opinion of the Court tions available to certain users to mitigate the CTEA’s impact). B Petitioners attempt to distinguish their challenge from the one turned away in Eldred. First Amendment inter- ests of a higher order are at stake here, petitioners say, because they—unlike their counterparts in Eldred— enjoyed “vested rights” in works that had already entered the public domain. The limited rights they retain under copyright law’s “built-in safeguards” are, in their view, no substitute for the unlimited use they enjoyed before §514’s enactment. Nor, petitioners urge, does §514’s “unprece- dented” foray into the public domain possess the historical pedigree that supported the term extension at issue in Eldred. Brief for Petitioners 42–43. However spun, these contentions depend on an argu- ment we considered and rejected above, namely, that the Constitution renders the public domain largely untouch- able by Congress. Petitioners here attempt to achieve under the banner of the First Amendment what they could not win under the Copyright Clause: On their view of the Copyright Clause, the public domain is inviolable; as they read the First Amendment, the public domain is policed through heightened judicial scrutiny of Congress’ means and ends. As we have already shown, see supra, at 13–19, the text of the Copyright Clause and the historical record scarcely establish that “once a work enters the public domain,” Congress cannot permit anyone—“not even the creator—[to] copyright it,” 501 F.3d, at 1184. And noth- ing in the historical record, congressional practice, or our own jurisprudence warrants exceptional First Amendment solicitude for copyrighted works that were once in the Cite as: 565 U. S. ____ (2012) 27 Opinion of the Court public domain.32 Neither this challenge nor that raised in Eldred, we stress, allege Congress transgressed a gener- ally applicable First Amendment prohibition; we are not faced, for example, with copyright protection that hinges on the author’s viewpoint. The Tenth Circuit’s initial opinion determined that petitioners marshaled a stronger First Amendment chal- lenge than did their predecessors in Eldred, who never “possessed unfettered access to any of the works at issue.” 501 F.3d, at 1193. See also id., at 1194 (“[O]nce the works at issue became free for anyone to copy, [petitioners] had vested First Amendment interests in the expressions, [thus] §514’s interference with [petitioners’] rights is subject to First Amendment scrutiny.”). As petitioners put it in this Court, Congress impermissibly revoked their right to exploit foreign works that “belonged to them” once the works were in the public domain. Brief for Petitioners 44–45. To copyright lawyers, the “vested rights” formulation —————— 32 “[R]equir[ing]works that have already fallen into the public do- main to stay there” might, as the dissent asserts, supply an “easily administrable standard.” Post, at 14. However attractive this bright- line rule might be, it is not a rule rooted in the constitutional text or history. Nor can it fairly be gleaned from our case law. The dissent cites three decisions to document its assertion that “this Court has assumed the particular importance of public domain material in rough- ly analogous circumstances.” Post, at 15. The dictum in Graham v. John Deere Co. of Kansas City, 383 U.S. 1, 6 (1966), noted earlier, did not treat the public domain as a constitutional limit—certainly not under the rubric of the First Amendment. See supra, at 19. The other two decisions the dissent cites considered whether the federal Patent Act preempted a state trade-secret law, Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470, 479–484 (1974), and whether the freedom of the press shielded reporters from liability for publishing material drawn from public court documents, Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 495–497 (1975). Neither decision remotely ascribed constitutional significance to a work’s public domain status. 28 GOLAN v. HOLDER Opinion of the Court might sound exactly backwards: Rights typically vest at the outset of copyright protection, in an author or rightholder. See, e.g., 17 U.S. C. §201(a) (“Copyright in a work protected . . . vests initially in the author . . . .”). Once the term of protection ends, the works do not revest in any rightholder. Instead, the works simply lapse into the public domain. See, e.g., Berne, Art. 18(1), 828 U. N. T. S., at 251 (“This Convention shall apply to all works which . . . have not yet fallen into the public do- main . . . .”). Anyone has free access to the public domain, but no one, after the copyright term has expired, acquires ownership rights in the once-protected works. Congress recurrently adjusts copyright law to protect categories of works once outside the law’s compass. For example, Congress broke new ground when it extended copyright protection to foreign works in 1891, Act of Mar. 3, §13, 26 Stat. 1110; to dramatic works in 1856, Act of Aug. 18, 11 Stat. 138; to photographs and photographic negatives in 1865, Act of Mar. 3, §1, 13 Stat. 540; to mo- tion pictures in 1912, Act of Aug. 24, 37 Stat. 488; to fixed sound recordings in 1972, Act of Oct. 15, 1971, 85 Stat. 391; and to architectural works in 1990, Architectural Works Copyright Protection Act, 104 Stat. 5133. And on several occasions, as recounted above, Congress protected works previously in the public domain, hence freely usable by the public. See supra, at 15–19. If Congress could grant protection to these works without hazarding height- ened First Amendment scrutiny, then what free speech principle disarms it from protecting works prematurely cast into the public domain for reasons antithetical to the Berne Convention? 33 —————— 33 It was the Fifth Amendment’s Takings Clause—not the First Amendment—that Congress apparently perceived to be a potential check on its authority to protect works then freely available to the Cite as: 565 U. S. ____ (2012) 29 Opinion of the Court Section 514, we add, does not impose a blanket prohibi- tion on public access. Petitioners protest that fair use and the idea/expression dichotomy “are plainly inadequate to protect the speech and expression rights that Section 514 took from petitioners, or . . . the public”—that is, “the unrestricted right to perform, copy, teach and distribute the entire work, for any reason.” Brief for Petitioners 46– 47. “Playing a few bars of a Shostakovich symphony,” petitioners observe, “is no substitute for performing the entire work.” Id., at 47.34 But Congress has not put petitioners in this bind. The question here, as in Eldred, is whether would-be users must pay for their desired use of the author’s expression, or else limit their exploitation to “fair use” of that work. Prokofiev’s Peter and the Wolf could once be performed free of charge; after §514 the right to perform it must be obtained in the marketplace. This is the same market- place, of course, that exists for the music of Prokofiev’s U. S. contemporaries: works of Copland and Bernstein, for example, that enjoy copyright protection, but nevertheless appear regularly in the programs of U. S. concertgoers. Before we joined Berne, domestic works and some for- eign works were protected under U. S. statutes and bilat- eral international agreements, while other foreign works were available at an artificially low (because royalty-free) —————— public. See URAA Joint Hearing 3 (statement of Rep. Hughes); id., at 121 (app. to statement of Lehman, Commerce Dept.); id., at 141 (state- ment of Shapiro, USTR); id., at 145 (statement of Christopher Schroe- der, DOJ). The reliance-party protections supplied by §514, see supra, at 10–11, were meant to address such concerns. See URAA Joint Hearing 148–149 (prepared statement of Schroeder). 34 Because Shostakovich was a pre-1973 Russian composer, his works were not protected in the United States. See U. S. Copyright Office, Circular No. 38A: The International Copyright Relations of the United States 9, 11, n. 2 (2010) (copyright relations between the Soviet Union and the United States date to 1973). 30 GOLAN v. HOLDER Opinion of the Court cost. By fully implementing Berne, Congress ensured that most works, whether foreign or domestic, would be gov- erned by the same legal regime. The phenomenon to which Congress responded is not new: Distortions of the same order occurred with greater frequency—and to the detriment of both foreign and domestic authors—when, before 1891, foreign works were excluded entirely from U. S. copyright protection. See Kampelman, The United States and International Copyright, 41 Am. J. Int’l L. 406, 413 (1947) (“American readers were less inclined to read the novels of Cooper or Hawthorne for a dollar when they could buy a novel of Scott or Dickens for a quarter.”). Section 514 continued the trend toward a harmonized copyright regime by placing foreign works in the position they would have occupied if the current regime had been in effect when those works were created and first pub- lished. Authors once deprived of protection are spared the continuing effects of that initial deprivation; §514 gives them nothing more than the benefit of their labors during whatever time remains before the normal copyright term expires.35 Unlike petitioners, the dissent makes much of the so- called “orphan works” problem. See post, at 11–14, 23–24. We readily acknowledge the difficulties would-be users of copyrightable materials may face in identifying or locating copyright owners. See generally U. S. Copyright Office, Report on Orphan Works 21–40 (2006). But as the dissent concedes, see post, at 13, this difficulty is hardly peculiar to works restored under §514. It similarly afflicts, for —————— 35 Persistently deploring “ ‘restored copyright’ protection [because it] removes material from the public domain,” post, at 14, the dissent does not pause to consider when and why the material came to be lodged in that domain. Most of the works affected by §514 got there after a term of zero or a term cut short by failure to observe U. S. formalities. See supra, at 9. Cite as: 565 U. S. ____ (2012) 31 Opinion of the Court instance, U. S. libraries that attempt to catalogue U. S. books. See post, at 12. See also Brief for American Li- brary Association et al. as Amici Curiae 22 (Section 514 “exacerbated,” but did not create, the problem of orphan works); U. S. Copyright Office, supra, at 41–44 (tracing orphan-works problem to Congress’ elimination of formali- ties, commencing with the 1976 Copyright Act).36 Nor is this a matter appropriate for judicial, as opposed to legislative, resolution. Cf. Authors Guild v. Google, Inc., 770 F. Supp. 2d 666, 677–678 (SDNY 2011) (rejecting proposed “Google Books” class settlement because, inter alia, “the establishment of a mechanism for exploiting unclaimed books is a matter more suited for Congress than this Court” (citing Eldred, 537 U.S., at 212)). In- deed, the host of policy and logistical questions identified by the dissent speak for themselves. Post, at 12. Despite “longstanding efforts,” see Authors Guild, 770 F. Supp. 2d, at 678 (quoting statement of Marybeth Peters), Congress has not yet passed ameliorative orphan-works legislation of the sort enacted by other Berne members, see, e.g., Canada Copyright Act, R. S. C., 1985, c. C–42, §77 (au- thorizing Copyright Board to license use of orphan works by persons unable, after making reasonable efforts, to locate the copyright owner). Heretofore, no one has sug- gested that the orphan-works issue should be addressed through our implementation of Berne, rather than through overarching legislation of the sort proposed in Congress and cited by the dissent. See post, at 23–24; U. S. Copyright Office, Legal Issues in Mass Digitization 25–29 (2011) (discussing recent legislative efforts). Our unstinting adherence to Berne may add impetus to calls —————— 36 The pervasive problem of copyright piracy, noted post, at 13, like- wise is scarcely limited to protected foreign works formerly in the public domain. 32 GOLAN v. HOLDER Opinion of the Court for the enactment of such legislation. But resistance to Berne’s prescriptions surely is not a necessary or proper response to the pervasive question, what should Congress do about orphan works. IV Congress determined that U. S. interests were best served by our full participation in the dominant system of international copyright protection. Those interests in- clude ensuring exemplary compliance with our interna- tional obligations, securing greater protection for U. S. authors abroad, and remedying unequal treatment of foreign authors. The judgment §514 expresses lies well within the ken of the political branches. It is our obliga- tion, of course, to determine whether the action Congress took, wise or not, encounters any constitutional shoal. For the reasons stated, we are satisfied it does not. The judg- ment of the Court of Appeals for the Tenth Circuit is therefore Affirmed. JUSTICE KAGAN took no part in the consideration or decision of this case. Cite as: 565 U. S. ____ (2012) 33 Opinion Appendix of the of to opinion Court the Court APPENDIX Title 17 U.S. C. §104A provides: “(a) AUTOMATIC PROTECTION AND TERM.— “(1) TERM.— “(A) Copyright subsists, in accordance with this sec- tion, in restored works, and vests automatically on the date of restoration. “(B) Any work in which copyright is restored under this section shall subsist for the remainder of the term of copyright that the work would have otherwise been grant- ed in the United States if the work never entered the public domain in the United States. “(2) EXCEPTION.—Any work in which the copyright was ever owned or administered by the Alien Property Custo- dian and in which the restored copyright would be owned by a government or instrumentality thereof, is not a re- stored work. “(b) OWNERSHIP OF RESTORED COPYRIGHT.—A restored work vests initially in the author or initial rightholder of the work as determined by the law of the source country of the work. “(c) FILING OF NOTICE OF INTENT TO ENFORCE RESTORED COPYRIGHT AGAINST RELIANCE PARTIES.—On or after the date of restoration, any person who owns a copyright in a restored work or an exclusive right therein may file with the Copyright Office a notice of intent to enforce that person’s copyright or exclusive right or may serve such a notice directly on a reliance party. Acceptance of a notice by the Copyright Office is effective as to any reliance parties but shall not create a presumption of the validity of any of the facts stated therein. Service on a reliance party is effective as to that reliance party and any other reliance parties with actual knowledge of such service and of the contents of that notice. “(d) REMEDIES FOR INFRINGEMENT OF RESTORED COPYRIGHTS.— 34 GOLAN v. HOLDER Opinion Appendix of the of to opinion Court the Court “(1) ENFORCEMENT OF COPYRIGHT IN RESTORED WORKS IN THE ABSENCE OF A RELIANCE PARTY.—As against any party who is not a reliance party, the remedies provided in chapter 5 of this title shall be available on or after the date of restoration of a restored copyright with respect to an act of infringement of the restored copyright that is commenced on or after the date of restoration. “(2) ENFORCEMENT OF COPYRIGHT IN RESTORED WORKS AS AGAINST RELIANCE PARTIES.—As against a reliance party, except to the extent provided in paragraphs (3) and (4), the remedies provided in chapter 5 of this title shall be available, with respect to an act of infringement of a re- stored copyright, on or after the date of restoration of the restored copyright if the requirements of either of the following subparagraphs are met: “(A)(i) The owner of the restored copyright (or such owner’s agent) or the owner of an exclusive right therein (or such owner’s agent) files with the Copyright Office, during the 24-month period beginning on the date of res- toration, a notice of intent to enforce the restored copy- right; and “(ii)(I) the act of infringement commenced after the end of the 12-month period beginning on the date of publi- cation of the notice in the Federal Register; “(II) the act of infringement commenced before the end of the 12-month period described in subclause (I) and continued after the end of that 12-month period, in which case remedies shall be available only for infringement occurring after the end of that 12-month period; or “(III) copies or phonorecords of a work in which copyright has been restored under this section are made after publication of the notice of intent in the Federal Register. “(B)(i) The owner of the restored copyright (or such owner’s agent) or the owner of an exclusive right therein (or such owner’s agent) serves upon a reliance party a Cite as: 565 U. S. ____ (2012) 35 Opinion Appendix of the of to opinion Court the Court notice of intent to enforce a restored copyright; and “(ii)(I) the act of infringement commenced after the end of the 12-month period beginning on the date the notice of intent is received; “(II) the act of infringement commenced before the end of the 12-month period described in subclause (I) and continued after the end of that 12-month period, in which case remedies shall be available only for the infringement occurring after the end of that 12-month period; or “(III) copies or phonorecords of a work in which copyright has been restored under this section are made after receipt of the notice of intent. “In the event that notice is provided under both subpara- graphs (A) and (B), the 12-month period referred to in such subparagraphs shall run from the earlier of publica- tion or service of notice. “(3) EXISTING DERIVATIVE WORKS.—(A) In the case of a derivative work that is based upon a restored work and is created— “(i) before the date of the enactment of the Uruguay Round Agreements Act, if the source country of the re- stored work is an eligible country on such date, or “(ii) before the date on which the source country of the restored work becomes an eligible country, if that country is not an eligible country on such date of enactment, “a reliance party may continue to exploit that derivative work for the duration of the restored copyright if the reliance party pays to the owner of the restored copyright reasonable compensation for conduct which would be subject to a remedy for infringement but for the provisions of this paragraph. “(B) In the absence of an agreement between the parties, the amount of such compensation shall be determined by an action in United States district court, and shall reflect any harm to the actual or potential market for or value of 36 GOLAN v. HOLDER Opinion Appendix of the of to opinion Court the Court the restored work from the reliance party’s continued exploitation of the work, as well as compensation for the relative contributions of expression of the author of the restored work and the reliance party to the derivative work. “(4) COMMENCEMENT OF INFRINGEMENT FOR RELIANCE PARTIES.—For purposes of section 412, in the case of reli- ance parties, infringement shall be deemed to have com- menced before registration when acts which would have constituted infringement had the restored work been subject to copyright were commenced before the date of restoration. “(e) NOTICES OF INTENT TO ENFORCE A RESTORED COPYRIGHT.— “(1) NOTICES OF INTENT FILED WITH THE COPYRIGHT OFFICE.—(A)(i) A notice of intent filed with the Copyright Office to enforce a restored copyright shall be signed by the owner of the restored copyright or the owner of an exclusive right therein, who files the notice under subsec- tion (d)(2)(A)(i) (hereafter in this paragraph referred to as the “owner”), or by the owner’s agent, shall identify the title of the restored work, and shall include an English translation of the title and any other alternative titles known to the owner by which the restored work may be identified, and an address and telephone number at which the owner may be contacted. If the notice is signed by an agent, the agency relationship must have been constituted in a writing signed by the owner before the filing of the notice. The Copyright Office may specifically require in regulations other information to be included in the notice, but failure to provide such other information shall not invalidate the notice or be a basis for refusal to list the restored work in the Federal Register. “(ii) If a work in which copyright is restored has no formal title, it shall be described in the notice of intent in detail sufficient to identify it. Cite as: 565 U. S. ____ (2012) 37 Opinion Appendix of the of to opinion Court the Court “(iii) Minor errors or omissions may be corrected by further notice at any time after the notice of intent is filed. Notices of corrections for such minor errors or omissions shall be accepted after the period established in subsection (d)(2)(A)(i). Notices shall be published in the Federal Register pursuant to subparagraph (B). “(B)(i) The Register of Copyrights shall publish in the Federal Register, commencing not later than 4 months after the date of restoration for a particular nation and every 4 months thereafter for a period of 2 years, lists identifying restored works and the ownership thereof if a notice of intent to enforce a restored copyright has been filed. “(ii) Not less than 1 list containing all notices of intent to enforce shall be maintained in the Public Information Office of the Copyright Office and shall be available for public inspection and copying during regular business hours pursuant to sections 705 and 708. “(C) The Register of Copyrights is authorized to fix reasonable fees based on the costs of receipt, processing, recording, and publication of notices of intent to enforce a restored copyright and corrections thereto. “(D)(i) Not later than 90 days before the date the Agreement on Trade-Related Aspects of Intellectual Prop- erty referred to in section 101(d)(15) of the Uruguay Round Agreements Act enters into force with respect to the United States, the Copyright Office shall issue and publish in the Federal Register regulations governing the filing under this subsection of notices of intent to enforce a restored copyright. “(ii) Such regulations shall permit owners of restored copyrights to file simultaneously for registration of the restored copyright. “(2) NOTICES OF INTENT SERVED ON A RELIANCE PARTY.— (A) Notices of intent to enforce a restored copyright may be served on a reliance party at any time after the date of 38 GOLAN v. HOLDER Opinion Appendix of the of to opinion Court the Court restoration of the restored copyright. “(B) Notices of intent to enforce a restored copyright served on a reliance party shall be signed by the owner or the owner’s agent, shall identify the restored work and the work in which the restored work is used, if any, in detail sufficient to identify them, and shall include an English translation of the title, any other alternative titles known to the owner by which the work may be identified, the use or uses to which the owner objects, and an address and telephone number at which the reliance party may contact the owner. If the notice is signed by an agent, the agency relationship must have been constituted in writing and signed by the owner before service of the notice. “(3) EFFECT OF MATERIAL FALSE STATEMENTS.—Any material false statement knowingly made with respect to any restored copyright identified in any notice of intent shall make void all claims and assertions made with respect to such restored copyright. “(f) IMMUNITY FROM WARRANTY AND RELATED LIABILITY.— “(1) IN GENERAL.—Any person who warrants, promises, or guarantees that a work does not violate an exclusive right granted in section 106 shall not be liable for legal, equitable, arbitral, or administrative relief if the war- ranty, promise, or guarantee is breached by virtue of the restoration of copyright under this section, if such warran- ty, promise, or guarantee is made before January 1, 1995. “(2) PERFORMANCES.—No person shall be required to perform any act if such performance is made infringing by virtue of the restoration of copyright under the provisions of this section, if the obligation to perform was undertaken before January 1, 1995. “(g) PROCLAMATION OF COPYRIGHT RESTORATION.— Whenever the President finds that a particular foreign nation extends, to works by authors who are nationals or domiciliaries of the United States, restored copyright Cite as: 565 U. S. ____ (2012) 39 Opinion Appendix of the of to opinion Court the Court protection on substantially the same basis as provided under this section, the President may by proclamation extend restored protection provided under this section to any work— “(1) of which one or more of the authors is, on the date of first publication, a national, domiciliary, or sovereign authority of that nation; or “(2) which was first published in that nation. “The President may revise, suspend, or revoke any such proclamation or impose any conditions or limitations on protection under such a proclamation. “(h) DEFINITIONS.—For purposes of this section and sec- tion 109(a): “(1) The term “date of adherence or proclamation” means the earlier of the date on which a foreign nation which, as of the date the WTO Agreement enters into force with respect to the United States, is not a nation adhering to the Berne Convention or a WTO member country, becomes— “(A) a nation adhering to the Berne Convention; “(B) a WTO member country; “(C) a nation adhering to the WIPO Copyright Treaty; “(D) a nation adhering to the WIPO Performances and Phonograms Treaty; or “(E) subject to a Presidential proclamation under subsection (g). “(2) The “date of restoration” of a restored copyright is— “(A) January 1, 1996, if the source country of the restored work is a nation adhering to the Berne Conven- tion or a WTO member country on such date, or “(B) the date of adherence or proclamation, in the case of any other source country of the restored work. “(3) The term “eligible country” means a nation, other than the United States, that— “(A) becomes a WTO member country after the date of the enactment of the Uruguay Round Agreements Act; 40 GOLAN v. HOLDER Opinion Appendix of the of to opinion Court the Court “(B) on such date of enactment is, or after such date of enactment becomes, a nation adhering to the Berne Convention; “(C) adheres to the WIPO Copyright Treaty; “(D) adheres to the WIPO Performances and Phono- grams Treaty; or “(E) after such date of enactment becomes subject to a proclamation under subsection (g). “(4) The term “reliance party” means any person who— “(A) with respect to a particular work, engages in acts, before the source country of that work becomes an eligible country, which would have violated section 106 if the restored work had been subject to copyright protection, and who, after the source country becomes an eligible country, continues to engage in such acts; “(B) before the source country of a particular work becomes an eligible country, makes or acquires 1 or more copies or phonorecords of that work; or “(C) as the result of the sale or other disposition of a derivative work covered under subsection (d)(3), or signifi- cant assets of a person described in subparagraph (A) or (B), is a successor, assignee, or licensee of that person. “(5) The term “restored copyright” means copyright in a restored work under this section. “(6) The term “restored work” means an original work of authorship that— “(A) is protected under subsection (a); “(B) is not in the public domain in its source country through expiration of term of protection; “(C) is in the public domain in the United States due to— “(i) noncompliance with formalities imposed at any time by United States copyright law, including failure of renewal, lack of proper notice, or failure to comply with any manufacturing requirements; “(ii) lack of subject matter protection in the case of Cite as: 565 U. S. ____ (2012) 41 Opinion Appendix of the of to opinion Court the Court sound recordings fixed before February 15, 1972; or “(iii) lack of national eligibility; “(D) has at least one author or rightholder who was, at the time the work was created, a national or domiciliary of an eligible country, and if published, was first published in an eligible country and not published in the United States during the 30-day period following publication in such eligible country; and “(E) if the source country for the work is an eligible country solely by virtue of its adherence to the WIPO Performances and Phonograms Treaty, is a sound recording. “(7) The term “rightholder” means the person— “(A) who, with respect to a sound recording, first fixes a sound recording with authorization, or “(B) who has acquired rights from the person de- scribed in subparagraph (A) by means of any conveyance or by operation of law. “(8) The “source country” of a restored work is— “(A) a nation other than the United States “(B) in the case of an unpublished work— “(i) the eligible country in which the author or rightholder is a national or domiciliary, or, if a restored work has more than 1 author or rightholder, of which the majority of foreign authors or rightholders are nationals or domiciliaries; or “(ii) if the majority of authors or rightholders are not foreign, the nation other than the United States which has the most significant contacts with the work; and “(C) in the case of a published work— “(i) the eligible country in which the work is first published, or “(ii) if the restored work is published on the same day in 2 or more eligible countries, the eligible country which has the most significant contacts with the work.” Cite as: 565 U. S. ____ (2012) 1 BREYER, J., dissenting SUPREME COURT OF THE UNITED STATES _________________ No. 10–545 _________________ LAWRENCE GOLAN, ET AL., PETITIONERS v. ERIC H. HOLDER, JR., ATTORNEY GENERAL, ET AL.	The Berne Convention for the Protection of Literary and Artistic Works (Berne Convention or Berne), which took effect in 188, is the principal accord governing interna- tional copyright relations. Latecomer to the international copyright regime launched by Berne, the United States joined the Convention in 1989. To perfect U. S. implemen- tation of Berne, and as part of our response to the Uru- guay Round of multilateral trade negotiations, Congress, in 1994, gave works enjoying copyright protection abroad the same full term of protection available to U. S. works. Congress did so in of the Uruguay Round Agree- ments Act (URAA), which grants copyright protection to preexisting works of Berne member countries, protected in their country of origin, but lacking protection in the United States for any of three reasons: The United States did not protect works from the country of origin at the time of publication; the United States did not protect sound record- ings fixed before 1972; or the author had failed to comply with U. S. statutory formalities (formalities Congress no longer requires as prerequisites to copyright protection). The URAA accords no protection to a foreign work after 2 GOLAN v. HOLDER Opinion of the Court its full copyright term has expired, causing it to fall into the public domain, whether under the laws of the country of origin or of this country. Works encompassed by are granted the protection they would have enjoyed had the United States maintained copyright relations with the author’s country or removed formalities incompatible with Berne. Foreign authors, however, gain no credit for the protection they lacked in years prior to ’s enactment. They therefore enjoy fewer total years of exclusivity than do their U. S. counterparts. As a consequence of the barri- ers to U. S. copyright protection prior to the enactment of foreign works “restored” to protection by the meas- ure had entered the public domain in this country. To cushion the impact of their placement in protected status, Congress included in ameliorating accommodations for parties who had exploited affected works before the URAA was enacted. Petitioners include orchestra conductors, musicians, pub- lishers, and others who formerly enjoyed free access to works removed from the public domain. They main- tain that the Constitution’s Copyright and Patent Clause, Art. I, cl. 8, and First Amendment both decree the invalidity of Under those prescriptions of our high- est law, petitioners assert, a work that has entered the public domain, for whatever reason, must forever remain there. In accord with the judgment of the Tenth Circuit, we conclude that does not transgress constitutional limitations on Congress’ authority. Neither the Copyright and Patent Clause nor the First Amendment, we hold, makes the public domain, in any and all cases, a territory that works may never exit. I A Members of the Berne Union agree to treat authors from other member countries as well as they treat their own. Cite as: 55 U. S. (2012) 3 Opinion of the Court Berne Convention, Sept. 9, 188, as revised at Stockholm on July 14, 197, Art. 1, 5(1), 828 U. N. T. S. 221, 225, 231–233. Nationals of a member country, as well as any author who publishes in one of Berne’s 14 member states, thus enjoy copyright protection in nations across the globe. Art. 2(), 3. Each country, moreover, must afford at least the minimum level of protection specified by Berne. The copyright term must span the author’s lifetime, plus at least 50 additional years, whether or not the author has complied with a member state’s legal formalities. Art. 5(2), 7(1). And, as relevant here, a work must be protected abroad unless its copyright term has expired in either the country where protection is claimed or the country of origin. Art. 18(1)–(2).1 A different system of transnational copyright protection long prevailed in this country. Until 1891, foreign works were categorically excluded from Copyright Act protection. Throughout most of the 20th century, the only eligible foreign authors were those whose countries granted recip- rocal rights to U. S. authors and whose works were print —————— 1 Article 18 of the Berne Convention provides: “(1) This Convention shall apply to all works which, at the moment of its coming into force, have not yet fallen into the public domain in the country of origin through the expiry of the term of protection. “(2) If, however, through the expiry of the term of protection which was previously granted, a work has fallen into the public domain of the country where protection is claimed, that work shall not be protected anew. “(3) The application of this principle shall be subject to any provisions contained in special conventions to that effect existing or to be conclud- ed between countries of the Union. In the absence of such provisions, the respective countries shall determine, each in so far as it is con- cerned, the conditions of application of this principle. “(4) The preceding provisions shall also apply in the case of new accessions to the Union and to cases in which protection is extended by the application of Article 7 or by the abandonment of reservations.” 828 U. N. T. S. 251. 4 GOLAN v. HOLDER Opinion of the Court ed in the United States. See Act of Mar. 3, 1891, 13, 2 Stat. 1107, 1110; Patry, The United States and Inter- national Copyright Law, 40 Houston L. Rev. 749, 7502 For domestic and foreign authors alike, protection hinged on compliance with notice, registration, and re- newal formalities. The United States became party to Berne’s multilateral, formality-free copyright regime in 1989. Initially, Con- gress adopted a “minimalist approach” to compliance with the Convention. H. R. Rep. No. 100–09, p. 7 (1988) (here- inafter BCIA House Report). The Berne Convention Im- plementation Act of 1988 (BCIA), made “only those changes to American copyright law that [were] clearly required under the treaty’s provisions,” BCIA House Report, at 7. Despite Berne’s instruction that member countries—including “new accessions to the Union”— protect foreign works under copyright in the country of origin, Art. 18(1) and (4), 828 U. N. T. S., at 251, the BCIA accorded no protection for “any work that is in the public domain in the United States,” Protection of future foreign works, the BCIA indicated, satisfied Article 18. See (“The amendments made by this Act, together with the law as it exists on the date of the enactment of this Act, satisfy the obligations of the United States in adhering to the Berne Convention”). Congress indicated, however, that it —————— 2 As noted by the Government’s amici, the United States excluded foreign works from copyright not to swell the number of unprotected works available to the consuming public, but to favor domestic publish- ing interests that escaped paying royalties to foreign authors. See Brief for International Publishers Association et al. as Amici Curiae 8–15. This free-riding, according to Senator Jonathan Chace, champion of the 1891 Act, made the United States “the Barbary coast of literature” and its people “the buccaneers of books.” S. Rep. No. 22, 50th Cong., 1st Sess., p. 2 (1888). Cite as: 55 U. S. (2012) 5 Opinion of the Court had not definitively rejected “retroactive” protection for preexisting foreign works; instead it had punted on this issue of Berne’s implementation, deferring consideration until “a more thorough examination of Constitutional, commercial, and consumer considerations is possible.” BCIA House Report, at 51, 52.3 The minimalist approach essayed by the United States did not sit well with other Berne members.4 While negoti- —————— 3 See also S. Rep. No. 103–412, p. 225 (1994) (“While the United States declared its compliance with the Berne Convention in 1989, it never addressed or enacted legislation to implement Article 18 of the Convention.”); Memorandum from Chris Schroeder, Counselor to the Assistant Attorney General, of Legal Counsel, Dept. of Justice (DOJ), to Ira S. Shapiro, General Counsel, of the U. S. Trade Representative (July 29, 1994), in W. Patry, Copyright and the GATT, p. C–15 (1995) (“At the time Congress was debating the BCIA, it reserved the issue of removing works from the public domain.”); Gen- eral Agreement on Tariffs and Trade (GATT): Intellectual Property Provisions, Joint Hearing before the Subcommittee on Intellectual Property and Judicial Administration of the House Committee on the Judiciary and the Subcommittee on Patents, Copyrights and Trade- marks of the Senate Committee on the Judiciary, 103d Cong., 2d Sess., p. 120 (1994) (URAA Joint Hearing) (app. to statement of Bruce A. Lehman, Assistant Secretary of Commerce and Commissioner of Patents and Trademarks (Commerce Dept.)) (“When the United States adhered to the Berne Convention, Congress acknowledged that the possibility of restoring copyright protection for foreign works that had fallen into the public domain in the United States for failure to comply with formalities was an issue that merited further discussion.”). 4 The dissent implicitly agrees that, whatever tentative conclusion Congress reached in 1988, Article 18 requires the United States to “protect the foreign works at issue,” at least absent a special conven- tion the United States did not here negotiate. Post, at 22. See also post, at 23 ); (“[T]he Convention clearly requires that some level of protection be given to foreign authors whose works have entered the public domain (other than by expiration of previous copyright).”). Accord S. Ricketson, The Berne Convention for the Protection of Literary and Artistic Works 188–198, p. 75 (1987) GOLAN v. HOLDER Opinion of the Court ations were ongoing over the North American Free Trade Agreement (NAFTA), Mexican authorities complained about the United States’ refusal to grant protection, in accord with Article 18, to Mexican works that remained under copyright domestically. See Intellectual Property and International Issues, Hearings before the Subcommit- tee on Intellectual Property and Judicial Administration, House Committee on the Judiciary, 102d Cong., 1st Sess., 18 (1991) (statement of Ralph Oman, U. S. Register of Copyrights).5 The Register of Copyrights also reported “questions” from Turkey, Egypt, and Austria. Thai- land and Russia balked at protecting U. S. works, copy- righted here but in those countries’ public domains, until the United States reciprocated with respect to their au- thors’ works. URAA Joint Hearing 137 (statement of Ira S. Shapiro, General Counsel, of the U. S. Trade Representative (USTR)); (statement of Profes- sor Shira ); (statement of Jason S. Berman, Recording Industry Association of America (RIAA)). —————— (“There is no basis on which [protection of existing works under Article 18] can be completely denied. The conditions and reservations,” au- thorized by Article 18(3) [and stressed by the dissent, post, at 23–24] are of “limited” and “transitional” duration and “would not be permitted to deny [protection] altogether in relation to a particular class of works.”). 5 NAFTA ultimately included a limited retroactivity provision—a precursor to of the URAA—granting U. S. copyright protection to certain Mexican and Canadian films. These films had fallen into the public domain, between 1978 and 1988, for failure to meet U. S. notice requirements. See North American Free Trade Agreement Implemen- tation Act, ; Brief for Franklin Pierce Center for Intellectual Property as Amicus Curiae 14–1. One year later, Con- gress replaced this provision with the version of 17 U.S. C. at issue here. See 3 M. Nimmer & D. Nimmer, Copyright 9A.04, pp. 9A–17, 9A–22 (hereinafter Nimmer). This tension between the United States and its new Berne counter Cite as: 55 U. S. (2012) 7 Opinion of the Court Berne, however, did not provide a potent enforcement mechanism. The Convention contemplates dispute resolu- tion before the International Court of Justice. Art. 33(1). But it specifies no sanctions for noncompliance and allows parties, at any time, to declare themselves “not bound” by the Convention’s dispute resolution provision. Art. 33(2)–(3) 828 U. N. T. S., at 277. Unsurprisingly, no en- forcement actions were launched before 1994. D. The TRIPS Agreement 213, and n. 134 (3d ed. 2008). Although “several Berne Union Members disagreed with [our] interpretation of Article 18,” the USTR told Con- gress, the Berne Convention did “not provide a meaningful dispute resolution process.” URAA Joint Hearing 137 (statement of Shapiro). This shortcoming left Congress “free to adopt a minimalist approach and evade Article 18.” Karp, Final Report, Berne Article 18 Study on Retro- active United States Copyright Protection for Berne and other Works, 20 Colum.-VLA J. L. & Arts 1, 172 (199). The landscape changed in 1994. The Uruguay round of multilateral trade negotiations produced the World Trade Organization (WTO) and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).7 The United States joined both. TRIPS mandates, on pain of WTO enforcement, implementation of Berne’s first 21 articles. TRIPS, Art. 9.1, 33 I. L. M. 1197, 1201 (requiring adherence to all but the “moral rights” provisions of Arti- cle bis). The WTO gave teeth to the Convention’s re- quirements: Noncompliance with a WTO ruling could —————— parties calls into question the dissent’s assertion that, despite the 1988 Act’s minimalist approach, “[t]he United States obtained the benefits of Berne for many years.” Post, at 22–23. During this six-year period, Congress had reason to doubt that U. S. authors enjoyed the full benefits of Berne membership. 7 Marrakesh Agreement Establishing the World Trade Organization, Apr. 15, 1994, 187 U. N. T. S. 154. 8 GOLAN v. HOLDER Opinion of the Court subject member countries to tariffs or cross-sector retalia- tion. See ; 7 W. Patry, Copyright pp. 24–8 to 24–9 The specter of WTO en- forcement proceedings bolstered the credibility of our trading partners’ threats to challenge the United States for inadequate compliance with Article 18. See URAA Joint Hearing 137 (statement of Shapiro, USTR) (“It is likely that other WTO members would challenge the current U. S. implementation of Berne Article 18 under [WTO] procedures.”).8 Congress’ response to the Uruguay agreements put to rest any questions concerning U. S. compliance with Arti- cle 18. Section 514 of the URAA, (codified at 17 U.S. C. 109(a)),9 extended copyright to works that garnered protection in their countries of origin,10 but —————— 8 Proponents of prompt congressional action urged that avoiding a trade enforcement proceeding—potentially the WTO’s first—would be instrumental in preserving the United States’ “reputation as a world leader in the copyright field.” URAA Joint Hearing 241 (statement of Eric Smith, International Intellectual Property Alliance (IIPA)). In this regard, U. S. negotiators reported that widespread perception of U. S. noncompliance was undermining our leverage in copyright negotia- tions. Unimpeachable adherence to Berne, Congress was told, would help ensure enhanced foreign protection, and hence profitable dissemi- nation, for existing and future U. S. works. See (app. to statement of Lehman, Commerce Dept.) (“Clearly, providing for [retro- active] protection for existing works in our own law will improve our position in future negotiations.”); (statement of Berman, RIAA). 9 Title 17 U.S. C. is reproduced in full in an appendix to this opinion. 10 Works from most, but not all, foreign countries are eligible for pro- tection under The provision covers only works that have “at least one author or rightholder who was, at the time the work was created, a national or domiciliary of an eligible country.” 17 U.S. C. (h)()(D). An “eligible country” includes any “nation, other than the United States, that—(A) becomes a WTO member country after the date of the enactment of the [URAA]; [or] (B) on such date of enactment Cite as: 55 U. S. (2012) 9 Opinion of the Court had no right to exclusivity in the United States for any of three reasons: lack of copyright relations between the country of origin and the United States at the time of publication; lack of subject-matter protection for sound recordings fixed before 1972; and failure to comply with U. S. statutory formalities (e.g., failure to provide notice of copyright status, or to register and renew a copyright). See (h)()(B)–(C).11 Works that have fallen into the public domain after the —————— is, or after such date of enactment becomes, a nation adhering to the Berne Convention.” (h)(3). As noted above, see at 3, 14 countries adhere to the Berne Convention. World Intellec- tual Property Organization, Contracting Parties: Berne Convention, www.wipo.int/treaties (as visited Jan. 13, 2012, and in Clerk of Court’s case file). 11 From the first Copyright Act until late in the 20th century, Con- gress conditioned copyright protection on compliance with certain statutory formalities. The most notable required an author to register her work, renew that registration, and affix to published copies notice of copyrighted status. The formalities drew criticism as a trap for the unwary. See, e.g., 2 Nimmer p. 7–8; Doyle, Cary, McCannon, & Ringer, Notice of Copyright, Study No. 7, p. 4 (19), reprinted in 1 Studies on Copyright 229, 272 (193). In 197, Congress eliminated the registration renewal requirement for future works. Copyright Act of 197, 408, 2580. In 1988, it repealed the mandatory notice prerequisite. BCIA 102 Stat. 28. And in 1992, Congress made renewal automatic for works still in their first term of protection. Copyright Amendments Act of 1992, –2. The Copyright Act retains, however, incen- tives for authors to register their works and provide notice of the works’ copyrighted status. See, e.g., 17 U.S. C. (precluding actual and statutory damages against “innocent infringers” of a work that lacked notice of copyrighted status); (requiring registration of U. S. “work[s],” but not foreign works, before an owner may sue for infringe- ment). The revisions successively made accord with Berne Convention Article 5(2), which proscribes application of copyright formalities to foreign authors. Berne, however, affords domestic authors no escape from domestic formalities. See Art. 5(3) (protection within country of origin is a matter of domestic law). 10 GOLAN v. HOLDER Opinion of the Court expiration of a full copyright term—either in the United States or the country of origin—receive no further protec- tion under 12 Copyrights “restored”13 under URAA “subsist for the remainder of the term of copyright that the work would have otherwise been grant- ed if the work never entered the public domain.” (a)(1)(B). Prospectively, restoration places foreign works on an equal footing with their U. S. counterparts; assuming a foreign and domestic author died the same day, their works will enter the public domain simultane- ously. See (copyrights generally expire 70 years after the author’s death). Restored works, however, re- ceive no compensatory time for the period of exclusivity they would have enjoyed before ’s enactment, had they been protected at the outset in the United States. Their total term, therefore, falls short of that available to similarly situated U. S. works. The URAA’s disturbance of the public domain hardly escaped Congress’ attention. Section 514 imposed no liability for any use of foreign works occurring before restoration. In addition, anyone remained free to copy and use restored works for one year following ’s enact- ment. See 17 U.S. C. (h)(2)(A). Concerns about ’s compatibility with the Fifth Amendment’s Takings —————— 12 Title 17 U.S. C. (h)()(B) defines a “restored work” to exclude “an original work of authorship” that is “in the public domain in its source country through expiration of [its] term of protection.” This provision tracks Berne’s denial of protection for any work that has “fallen into the public domain in the country of origin through the expiry of the term of protection.” Art. 18(1), 828 U. N. T. S., at 251. 13 Restoration is a misnomer insofar as it implies that all works protected under previously enjoyed protection. Each work in the public domain because of lack of national eligibility or subject- matter protection, and many that failed to comply with formalities, never enjoyed U. S. copyright protection. See, e.g., 3 Nimmer A–2, and n. 29.4. Cite as: 55 U. S. (2012) 11 Opinion of the Court Clause led Congress to include additional protections for “reliance parties”—those who had, before the URAA’s enactment, used or acquired a foreign work then in the public domain. See (h)(3)–(4).14 Reliance parties may continue to exploit a restored work until the owner of the restored copyright gives notice of intent to enforce— either by filing with the U. S. Copyright within two years of restoration, or by actually notifying the reliance party. (c), (d)(2)(A)(i), and (B)(i). After that, reli- ance parties may continue to exploit existing copies for a grace period of one year. (d)(2)(A)(ii), and (B)(ii). Finally, anyone who, before the URAA’s enactment, creat- ed a “derivative work” based on a restored work may indefinitely exploit the derivation upon payment to the copyright holder of “reasonable compensation,” to be set by a district judge if the parties cannot agree. (d)(3). B In 2001, petitioners filed this lawsuit challenging They maintain that Congress, when it passed the URAA, exceeded its authority under the Copyright Clause and transgressed First Amendment limitations.15 The District —————— 14 A reliance party must have used the work in a manner that would constitute infringement had a valid copyright been in effect. See (h)(4)(A). After restoration, the reliance party is limited to her previous uses. A performer of a restored work, for example, cannot, post-restoration, venture to sell copies of the script. See 3 Nimmer A–45 to 9A–4. 15 Petitioners’ complaint also challenged the constitutionality of the Copyright Term Extension Act, which added 20 years to the duration of existing and future copy After this Court rejected a similar challenge in the District Court dismissed this portion of petitioners’ suit on the plead- ings, The Tenth Circuit affirmed, and petitioners do not attempt to revive that claim in this Court, Pet. for Cert. 7, n. 2. Neither have petitioners challenged the District Court’s 12 GOLAN v. HOLDER Opinion of the Court Court granted the Attorney General’s motion for summary judgment. No. Civ. 01–B–1854, 2005 WL 914754 (D. Colo., Apr. 20, 2005). In rejecting petition- ers’ Copyright Clause argument, the court stated that Congress “has historically demonstrated little compunc- tion about removing copyrightable materials from the public domain.” The court next declined to part from “the settled rule that private censorship via copyright enforcement does not implicate First Amend- ment concerns.” The Court of Appeals for the Tenth Circuit affirmed in part. The public domain, it agreed, was not a “threshold that Con- gress” was powerless to “traverse in both directions.” at 1187 (internal quotations marks omitted). But as the Court of Appeals read our decision in required further First Amend- ment The measure “ ‘al- tered the traditional contours of copyright protection,’ ” the court said—specifically, the “bedrock principle” that once works enter the public domain, they do not leave. (quoting ). The case was remand- ed with an instruction to the District Court to address the First Amendment claim in light of the Tenth Circuit’s opinion. On remand, the District Court’s starting premise was uncontested: Section 514 does not regulate speech on the basis of its content; therefore the law would be upheld if “narrowly tailored to serve a significant government inter- est.” (quot- ing (1989)). Summary judgment was due petitioners, the —————— entry of summary judgment for the Government on the claim that violates the substantive component of the Due Process Clause. Cite as: 55 U. S. (2012) 13 Opinion of the Court court concluded, because ’s constriction of the public domain was not justified by any of the asserted federal interests: compliance with Berne, securing greater protec- tion for U. S. authors abroad, or remediation of the inequi- table treatment suffered by foreign authors whose works lacked protection in the United States. 11 F. Supp. 2d, at 1172–1177. The Tenth Circuit reversed. Deferring to Congress’ predictive judgments in matters relating to foreign affairs, the appellate court held that survived First Amend- ment scrutiny. Specifically, the court determined that the law was narrowly tailored to fit the important government aim of protecting U. S. copyright holders’ interests abroad. We granted certiorari to consider petitioners’ challenge to under both the Copyright Clause and the First Amendment, 52 U. S. and now affirm. II We first address petitioners’ argument that Congress lacked authority, under the Copyright Clause, to enact The Constitution states that “Congress shall have Power [t]o promote the Progress of Science by securing for limited Times to Authors the exclusive Right to their Writings.” Art. I, cl. 8. Petitioners find in this grant of authority an impenetrable barrier to the extension of copyright protection to authors whose writings, for whatever reason, are in the public domain. We see no such barrier in the text of the Copyright Clause, historical practice, or our precedents. A The text of the Copyright Clause does not exclude appli- cation of copyright protection to works in the public do- main. Symposium, Congressional Power and Limitations Inherent in the Copyright Clause, 30 Colum. J. L. & Arts 14 GOLAN v. HOLDER Opinion of the Court 259, 2 Petitioners’ ry argument relies primarily on the Constitution’s confinement of a copy- right’s lifespan to a “limited Tim[e].” “Removing works from the public domain,” they contend, “violates the ‘lim- ited [t]imes’ restriction by turning a fixed and predictable period into one that can be reset or resurrected at any time, even after it expires.” Brief for Petitioners 22. Our decision in is largely dispositive of petition- ers’ limited-time argument. There we addressed the question whether Congress violated the Copyright Clause when it extended, by 20 years, the terms of existing copy- –193 (upholding Copyright Term Extension Act (CTEA)). Ruling that Congress acted with- in constitutional bounds, we declined to infer from the text of the Copyright Clause “the command that a time pre- scription, once set, becomes forever ‘fixed’ or ‘inalterable.’ ” “The word ‘limited,’ ” we observed, “does not convey a meaning so constricted.” Rather, the term is best understood to mean “confine[d] within certain bounds,” “restrain[ed],” or “circumscribed.” (internal quotation marks omitted). The construction petitioners tender closely resembles the definition rejected in and is similarly infirm. The terms afforded works restored by are no less “limited” than those the CTEA lengthened. In light of petitioners do not here contend that the term Congress has granted U. S. authors—their lifetimes, plus 70 years—is unlimited. See 17 U.S. C. Nor do petitioners explain why terms of the same duration, as applied to foreign works, are not equally “circumscribed” and “confined.” See 537 U.S., Indeed, as earlier noted, see the copyrights of restored foreign works typically last for fewer years than those of their domestic counterparts. The difference, petitioners say, is that the limited time had already passed for works in the public domain. What Cite as: 55 U. S. (2012) 15 Opinion of the Court was that limited term for foreign works once excluded from U. S. copyright protection? Exactly “zero,” petition- ers respond. Brief for Petitioners 22 (works in question “received a specific term of protection sometimes ex- pressly set to zero”; “at the end of that period,” they “en- tered the public domain”); Tr. of Oral Arg. 52 (by “refusing to provide any protection for a work,” Congress “set[s] the term at zero,” and thereby “tell[s] us when the end has come”). We find scant sense in this argument, for surely a “limited time” of exclusivity must begin before it may end.1 Carried to its logical conclusion, petitioners persist, the Government’s position would allow Congress to institute a second “limited” term after the first expires, a third after that, and so on. Thus, as long as Congress legislated in installments, perpetual copyright terms would be achieva- ble. As in the hypothetical legislative misbehavior petitioners posit is far afield from the case before us. See –200, 209–210. In aligning the United States with other nations bound by the Berne Convention, and thereby according equitable treatment to once dis- favored foreign authors, Congress can hardly be charged with a design to move stealthily toward a regime of per- petual copy B Historical practice corroborates our reading of the Copy- right Clause to permit full U. S. compliance with Berne. Undoubtedly, federal copyright legislation generally has not affected works in the public domain. Section 514’s disturbance of that domain, petitioners argue, distin- —————— 1 Cf.3 Nimmer A–11, n. 28 (“[I]t stretches the language of the Berne Convention past the breaking point to posit that following ‘expiry of the zero term’ the work need not be resurrected.”). 1 GOLAN v. HOLDER Opinion of the Court guishes their suit from ’s. In adopting the CTEA, petitioners note, Congress acted in accord with “an unbro- ken congressional practice” of granting pre-expiration term No comparable prac- tice, they maintain, supports On occasion, however, Congress has seen fit to protect works once freely available. Notably, the Copyright Act of 1790 granted protection to many works previously in the public domain. Act of May 31, 1790 (1790 Act), 1 Stat. 124 (covering “any map, chart, book, or books already printed within these United States”). Before the Act launched a uniform national system, three States provided no statutory copyright protection at all.17 Of those that did afford some protection, seven failed to protect maps;18 eight did not cover previously published books;19 and all ten denied protection to works that failed to comply with formalities.20 The First Congress, it thus appears, did not view the public domain as inviolate. As we have recog- nized, the “construction placed upon the Constitution by [the drafters of] the first [copyright] act of 1790 and the act of 1802 men who were contemporary with [the Constitution’s] formation, many of whom were members of the convention which framed it, is of itself entitled to very great weight.” Burrow-Giles Lithographic Co. v. Sarony, —————— 17 See B. Bugbee, Genesis of American Patent and Copyright Law 123–124 (197) (hereinafter Bugbee) (Delaware, Maryland, and Pennsylvania). 18 See 1783 Mass. Acts p. 23; 1783 N. J. Laws p. 47; 1783 N. H. Laws p. 521; 1783 Rawle I. Laws pp. –7; 1784 S. C. Acts p. 49; 1785 Va. Acts ch. VI; 178 N. Y. Laws p. 298. 19 1783 Conn. Pub. Acts no. 17; 1783 N. J. Laws p. 47; 1785 N. C. Laws p. 53; 178 Ga. Laws p. 323. In four States, copyright enforce- ment was restricted to works “not yet printed” or “hereinafter pub- lished.” 1783 Mass. Acts p. 23; 1783 N. H. Laws p. 521; 1783 Rawle I. Laws pp. –7; 1784 S. C. Acts p. 49. 20 See Bugbee 109–123. Cite as: 55 U. S. (2012) 17 Opinion of the Court21 Subsequent actions confirm that Congress has not un- derstood the Copyright Clause to preclude protection for existing works. Several private bills restored the copy- rights of works that previously had been in the public domain. See Act of Feb. 19, 1849 (Corson Act), ch. 9 Stat. 73; Act of June 23, 1874 (Helmuth Act), ch. 534, 18 Stat. 18; Act of Feb. 17, 1898 (Jones Act), ch. 29, 30 Stat. 139. These bills were unchallenged in court. Analogous patent statutes, however, were upheld in litigation.22 In 1808, Congress passed a private bill restor- ing patent protection to Oliver ’ flour mill. When sued for infringement, first Chief Justice Marshall in the Circuit Court, (No. 4,54) (Va. 1813), and then Justice Bushrod Washington for this Court, upheld the restored patent’s validity. After the patent’s expiration, the Court said, “a general right to use [’] discovery was not so vested in the public” as to allow the defendant to continue using the machinery, which he had —————— 21 The parties debate the extent to which the First Congress removed works from the public domain. We have held, however, that at least some works protected by the 1790 Act previously lacked protection. In the Court ruled that before enact- ment of the 1790 Act, common-law copyright protection expired upon first publication. 3. Thus published works covered by the 1790 Act previously would have been in the public domain unless protected by state statute. Had the founding generation perceived the constitutional boundary petitioners advance today, the First Congress could have designed a prospective scheme that left the public domain undisturbed. Accord Luck’s Music Inc. v. Gonzales, 407 F.3d 122, 125 (CADC 2005) (Section 514 does not offend the Copyright Clause because, inter alia, “evidence from the First Congress,” as confirmed by Wheaton, “points toward constitutionality.”). 22 Here, as in “[b]ecause the Clause empowering Congress to confer copyrights also authorizes patents, congressional practice with respect to patents informs our inquiry.” 18 GOLAN v. HOLDER Opinion of the Court constructed between the patent’s expiration and the bill’s passage. See also Blanchard v. Sprague, 3 F. Cas. 48, 50 (No. 1,518) (CC Mass. 1839) (Story, J.) (“I never have entertained any doubt of the constitutional authority of congress” to “give a patent for an invention, which was in public use and enjoyed by the community at the time of the passage of the act.”). This Court again upheld Congress’ restoration of an invention to protected status in McClurg v. Kingsland, 1 How. 202 (1843). There we enforced an 1839 amendment that recognized a patent on an invention despite its prior use by the inventor’s employer. Absent such dispensation, the employer’s use would have rendered the invention unpatentable, and therefore open to exploitation without the inventor’s leave. at 20–209. Congress has also passed generally applicable legisla- tion granting patents and copyrights to inventions and works that had lost protection. An 1832 statute author- ized a new patent for any inventor whose failure, “by inadvertence, accident, or mistake,” to comply with statu- tory formalities rendered the original patent “invalid or inoperative.” Act of July 3, An 1893 measure similarly allowed authors who had not timely deposited their work to receive “all the rights and privileg- es” the Copyright Act affords, if they made the required deposit by March 1, 1893. Act of Mar. 3, ch. 215, 27 Stat. 743.23 And in 1919 and 1941, Congress authorized the President to issue proclamations granting protection to foreign works that had fallen into the public domain dur- ing World Wars I and II. See Act of Dec. 18, 1919, ch. 11, —————— 23 Section 514 is in line with these measures; like them, it accords protection to works that had lapsed into the public domain because of failure to comply with U. S. statutory formalities. See and n. 11. Cite as: 55 U. S. (2012) 19 Opinion of the Court ; Act of Sept. 25, 1941, ch. 421,24 Pointing to dictum in petitioners would have us look past this history. In Graham, we stated that “Con- gress may not authorize the issuance of patents whose effects are to remove existent knowledge from the public domain, or to restrict free access to materials already available.” ; post, at 15. But as we explained in this passage did not speak to the constitutional limits on Congress’ copyright and patent authority. Ra- ther, it “addressed an invention’s very eligibility for patent protection.” 537 U.S., n. 7. Installing a federal copyright system and ameliorating the interruptions of global war, it is true, presented Con- gress with extraordinary situations. Yet the TRIPS ac- cord, leading the United States to comply in full measure with Berne, was also a signal event. See at 7–8; cf. 24–25 (BREYER, J., dissenting) (acknowledging importance of international uniformity advanced by U. S. efforts to conform to the Berne Conven- tion). Given the authority we hold Congress has, we will not second-guess the political choice Congress made be- tween leaving the public domain untouched and embrac- ing Berne unstintingly. Cf. at 212–213. —————— 24 Legislation of this order, petitioners argue, is best understood as an exercise of Congress’ power to remedy excusable neglect. Even so, the remedy sheltered creations that, absent congressional action, would have been open to free exploitation. Such action, according to petition- ers’ dominant argument, see at 13–14, is ever and always impermissible. Accord Luck’s Music –12 (“Plaintiffs urge that [the 1790 Act and the wartime legislation] simply extended the time limits for filing and [did] not purport to modify the prohibition on removing works from the public domain. But to the extent that potential copyright holders failed to satisfy procedural requirements, such works”—like those protected by —“would necessarily have already entered the public domain”). 20 GOLAN v. HOLDER Opinion of the Court C Petitioners’ ultimate argument as to the Copyright and Patent Clause concerns its initial words. Congress is empowered to “promote the Progress of Science and useful Arts” by enacting systems of copyright and patent protec- tion. U. S. Const., Art. I, cl. 8. Perhaps counterintui- tively for the contemporary reader, Congress’ copyright authority is tied to the progress of science; its patent authority, to the progress of the useful arts. See Graham, and n. 1; (Marshall, J.). The “Progress of Science,” petitioners acknowledge, refers broadly to “the creation and spread of knowledge and learning.” Brief for Petitioners 21; accord post, at 1. They nevertheless argue that federal legislation cannot serve the Clause’s aim unless the legislation “spur[s] the creation of new works.” Brief for Petitioners 24; accord post, at 1–2, 8, 17. Because deals solely with works already created, petitioners urge, it “provides no plausible incentive to create new works” and is therefore invalid. Reply Brief 4.25 The creation of at least one new work, however, is not the sole way Congress may promote knowledge and learn- ing. In we rejected an argument nearly identical to the one petitioners rehearse. The petitioners urged that the “CTEA’s extension of existing copyrights categorically fails to ‘promote the Progress of Science,’ because it does not stimulate the creation of new works.” –212. In response to this argument, we —————— 25 But see Brief for Motion Picture Association of America as Amicus Curiae 27 (observing that income from existing works can finance the creation and publication of new works); 537 U.S., n. 15 (noting that Noah Webster “supported his entire family from the earnings on his speller and grammar during the twenty years he took to complete his dictionary” (internal quotation marks omitted)). Cite as: 55 U. S. (2012) 21 Opinion of the Court held that the Copyright Clause does not demand that each copyright provision, examined discretely, operate to induce new works. Rather, we explained, the Clause “empowers Congress to determine the intellectual property regimes that, overall, in that body’s judgment, will serve the ends of the Clause.” And those permissible ends, we held, extended beyond the creation of new works. See at 205–20 (rejecting the notion that “ ‘the only way to promote the progress of science [is] to provide incentives to create new works’ ” (quoting Participation in the International Copyright System as a Means to Pro- mote the Progress of Science and Useful Arts, 3 Loyola (LA) L. Rev. 323, 332 )).2 Even were we writing on a clean slate, petitioners’ argument would be unavailing. Nothing in the text of the Copyright Clause confines the “Progress of Science” exclu- sively to “incentives for creation.” (inter- nal quotation marks omitted). Evidence from the found- ing, moreover, suggests that inducing dissemination—as opposed to creation—was viewed as an appropriate means to promote science. See Nachbar, Constructing Copy- right’s Mythology, (“The scope of copyright protection existing at the time of the framing,” trained as it was on “publication, not creation,” “is inconsistent with claims that copyright must promote creative activity in order to be valid.” (internal quotation marks omitted)). Until 197, in fact, Congress made “federal copyright contingent on publication[,] [thereby] —————— 2 The dissent also suggests, more tentatively, that at least where copyright legislation extends protection to works previously in the public domain, Congress must counterbalance that restriction with new incentives to create. Post, at 8. Even assuming the public domain were a category of constitutional significance, at 13–19, we would not understand “the Progress of Science” to have this contingent meaning. 22 GOLAN v. HOLDER Opinion of the Court providing incentives not primarily for creation,” but for dissemination. Our deci- sions correspondingly recognize that “copyright supplies the economic incentive to create and disseminate ideas.” Harper & Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 558 (1985) (emphasis added). See also27 Considered against this backdrop, falls comfortably within Congress’ authority under the Copyright Clause. Congress rationally could have concluded that adherence to Berne “promotes the diffusion of knowledge,” Brief for Petitioners 4. A well-functioning international copyright system would likely encourage the dissemination of exist- ing and future works. See URAA Joint Hearing 189 (statement of Professor ). Full compliance with Berne, Congress had reason to believe, would expand the foreign markets available to U. S. authors and invigorate protection against piracy of U. S. works abroad, S. Rep. No. 103–412, pp. 224, 225 (1994); URAA Joint Hearing 291 (statement of Berman, RIAA); at 2, 247 (state- ment of Smith, IIPA), thereby benefitting copyright- intensive industries stateside and inducing greater investment in the creative process. The provision of incentives for the creation of new works is surely an essential means to advance the spread of knowledge and learning. We hold, however, that it is not the sole means Congress may use “[t]o promote the Pro- gress of Science.” See (United States would “lose all flexibility” were the provision of incentives to create the exclusive way to promote the —————— 27 That the same economic incentives might also induce the dissemi- nation of futons, fruit, or Bibles, see post, at 20, is no answer to this evidence that legislation furthering the dissemination of literary property has long been thought a legitimate way to “promote the Progress of Science.” Cite as: 55 U. S. (2012) 23 Opinion of the Court progress of science).28 Congress determined that exem- plary adherence to Berne would serve the objectives of the Copyright Clause. We have no warrant to reject the ra- tional judgment Congress made. III A We next explain why the First Amendment does not inhibit the restoration authorized by To do so, we first recapitulate the relevant part of our pathmarking decision in The petitioners in like those here, argued that Congress had violated not only the “limited Times” prescription of the Copyright Clause. In addition, and independently, the petitioners charged, Congress had offended the First Amendment’s freedom of expression guarantee. The CTEA’s 20-year enlargement of a copyright’s duration, we held in offended neither provision. Concerning the First Amendment, we recognized that some restriction on expression is the inherent and in- tended effect of every grant of copyright. Noting that the “Copyright Clause and the First Amendment were adopted close in time,” we observed that the Framers regarded copyright protection not simply as a limit on the manner in which expressive works may be used. They also saw copyright as an “engine of free ex- pression[:] By establishing a marketable right to the use of —————— 28 The dissent suggests that the “utilitarian view of copyrigh[t]” em- braced by Jefferson, Madison, and our case law sets us apart from continental Europe and inhibits us from harmonizing our copyright laws with those of countries in the civil-law tradition. See post, at 5–, 22. For persuasive refutation of that suggestion, see Austin, Does the Copyright Clause Mandate Isolationism? 2 Colum. J. L. & Arts 17, 59 (cautioning against “an isolationist reading of the Copyright Clause that is in tension with America’s international copyright relations over the last hundred or so years”). 24 GOLAN v. HOLDER Opinion of the Court one’s expression, copyright supplies the economic incentive to create and disseminate ideas.” (quoting Harper & (internal quotation marks omit- ted)); see (“rights conferred by copyright are designed to assure contributors to the store of knowledge a fair return for their labors”). We then described the “traditional contours” of copy- right protection, i.e., the “idea/expression dichotomy” and the “fair use” defense.29 Both are recognized in our juris- prudence as “built-in First Amendment accommodations.” ; see Harper & 471 U.S., at 50 (First Amendment protections are “embodied in the Copyright Act’s distinction between copyrightable expres- sion and uncopyrightable facts and ideas,” and in the “latitude for scholarship and comment” safeguarded by the fair use defense). The idea/expression dichotomy is codified at 17 U.S. C. “In no case does copyright protec[t] any idea, procedure, process, system, method of operation, concept, principle, or discovery described, explained, illustrat- ed, or embodied in [the copyrighted] work.” “Due to this [idea/expression] distinction, every idea, theory, and fact in a copyrighted work becomes instantly available for public exploitation at the moment of publication”; the author’s expression alone gains copyright protection. ; see Harper & 471 U.S., at 55 (“idea/expression dichotomy strike[s] a definitional balance between the First Amendment and the Copyright Act by permitting free communication of facts while still protecting an author’s expression” (internal quotation —————— 29 On the initial appeal in this case, the Tenth Circuit gave an uncon- fined reading to our reference in to “traditional contours of copyright.” –119. That reading was incorrect, as we here clarify. Cite as: 55 U. S. (2012) 25 Opinion of the Court marks omitted)). The second “traditional contour,” the fair use defense, is codified at 17 U.S. C. “[T]he fair use of a copyright- ed work, including such use by reproduction in copies for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copy- right.” This limitation on exclusivity “allows the public to use not only facts and ideas contained in a copyrighted work, but also [the author’s] expression itself in certain circumstances.” ; see (“fair use defense affords considerable latitude for scholar- ship and comment, even for parody” (internal quota- tion marks omitted)). Given the “speech-protective purposes and safeguards” embraced by copyright law, see we concluded in that there was no call for the heightened review petitioners sought in that case.30 We reach the same conclusion here.31 Section 514 leaves undisturbed the “idea/expression” distinction and the “fair use” defense. Moreover, Congress adopted measures to ease the transi- tion from a national scheme to an international copyright regime: It deferred the date from which enforcement runs, and it cushioned the impact of restoration on “reliance parties” who exploited foreign works denied protection before took effect. See at 10–11 (describing 17 U.S. C. (c), (d), and (h)). See also 537 U.S., (describing supplemental allowances and exemp- —————— 30 See (“Protection of [an author’s original expression from unrestricted exploitation] does not raise the free speech concerns present when the government compels or burdens the com- munication of particular facts or ideas.”). 31Focusing narrowly on the specific problem of orphan works, the dissent overlooks these principal protections against “the dissemination-restricting harms of copyright.” Post, at 14. 2 GOLAN v. HOLDER Opinion of the Court tions available to certain users to mitigate the CTEA’s impact). B Petitioners attempt to distinguish their challenge from the one turned away in First Amendment inter- ests of a higher order are at stake here, petitioners say, because they—unlike their counterparts in — enjoyed “vested rights” in works that had already entered the public domain. The limited rights they retain under copyright law’s “built-in safeguards” are, in their view, no substitute for the unlimited use they enjoyed before ’s enactment. Nor, petitioners urge, does ’s “unprece- dented” foray into the public domain possess the historical pedigree that supported the term extension at issue in Brief for Petitioners 42–43. However spun, these contentions depend on an argu- ment we considered and rejected above, namely, that the Constitution renders the public domain largely untouch- able by Congress. Petitioners here attempt to achieve under the banner of the First Amendment what they could not win under the Copyright Clause: On their view of the Copyright Clause, the public domain is inviolable; as they read the First Amendment, the public domain is policed through heightened judicial scrutiny of Congress’ means and ends. As we have already shown, see at 13–19, the text of the Copyright Clause and the historical record scarcely establish that “once a work enters the public domain,” Congress cannot permit anyone—“not even the creator—[to] copyright it,” And noth- ing in the historical record, congressional practice, or our own jurisprudence warrants exceptional First Amendment solicitude for copyrighted works that were once in the Cite as: 55 U. S. (2012) 27 Opinion of the Court public domain.32 Neither this challenge nor that raised in we stress, allege Congress transgressed a gener- ally applicable First Amendment prohibition; we are not faced, for example, with copyright protection that hinges on the author’s viewpoint. The Tenth Circuit’s initial opinion determined that petitioners marshaled a stronger First Amendment chal- lenge than did their predecessors in who never “possessed unfettered access to any of the works at issue.” See also (“[O]nce the works at issue became free for anyone to copy, [petitioners] had vested First Amendment interests in the expressions, [thus] ’s interference with [petitioners’] rights is subject to First Amendment scrutiny.”). As petitioners put it in this Court, Congress impermissibly revoked their right to exploit foreign works that “belonged to them” once the works were in the public domain. Brief for Petitioners –45. To copyright lawyers, the “vested rights” formulation —————— 32 “[R]equir[ing]works that have already fallen into the public do- main to stay there” might, as the dissent asserts, supply an “easily administrable standard.” Post, at 14. However attractive this bright- line rule might be, it is not a rule rooted in the constitutional text or history. Nor can it fairly be gleaned from our case law. The dissent cites three decisions to document its assertion that “this Court has assumed the particular importance of public domain material in rough- ly analogous circumstances.” Post, at 15. The dictum in Graham v. John Deere Co. of Kansas City, noted earlier, did not treat the public domain as a constitutional limit—certainly not under the rubric of the First Amendment. See The other two decisions the dissent cites considered whether the federal Patent Act preempted a state trade-secret law, Kewanee Oil 41 U.S. 470, and whether the freedom of the press shielded reporters from liability for publishing material drawn from public court documents, Cox Broadcasting Corp. v. Cohn, 420 U.S. 49, 495–497 (1975). Neither decision remotely ascribed constitutional significance to a work’s public domain status. 28 GOLAN v. HOLDER Opinion of the Court might sound exactly backwards: Rights typically vest at the outset of copyright protection, in an author or rightholder. See, e.g., 17 U.S. C. (“Copyright in a work protected vests initially in the author”). Once the term of protection ends, the works do not revest in any rightholder. Instead, the works simply lapse into the public domain. See, e.g., Berne, Art. 18(1), 828 U. N. T. S., at 251 (“This Convention shall apply to all works which have not yet fallen into the public do- main”). Anyone has free access to the public domain, but no one, after the copyright term has expired, acquires ownership rights in the once-protected works. Congress recurrently adjusts copyright law to protect categories of works once outside the law’s compass. For example, Congress broke new ground when it extended copyright protection to foreign works in 1891, Act of Mar. 3, 2 Stat. 1110; to dramatic works in 185, Act of Aug. 18, ; to photographs and photographic negatives in 185, Act of Mar. 3, ; to mo- tion pictures in 1912, Act of Aug. 24, ; to fixed sound recordings in 1972, Act of Oct. 15, 1971, 85 Stat. 391; and to architectural works in 1990, Architectural Works Copyright Protection Act, And on several occasions, as recounted above, Congress protected works previously in the public domain, hence freely usable by the public. See at 15–19. If Congress could grant protection to these works without hazarding height- ened First Amendment scrutiny, then what free speech principle disarms it from protecting works prematurely cast into the public domain for reasons antithetical to the Berne Convention? 33 —————— 33 It was the Fifth Amendment’s Takings Clause—not the First Amendment—that Congress apparently perceived to be a potential check on its authority to protect works then freely available to the Cite as: 55 U. S. (2012) 29 Opinion of the Court Section 514, we add, does not impose a blanket prohibi- tion on public access. Petitioners protest that fair use and the idea/expression dichotomy “are plainly inadequate to protect the speech and expression rights that Section 514 took from petitioners, or the public”—that is, “the unrestricted right to perform, copy, teach and distribute the entire work, for any reason.” Brief for Petitioners 4– 47. “Playing a few bars of a Shostakovich symphony,” petitioners observe, “is no substitute for performing the entire work.”34 But Congress has not put petitioners in this bind. The question here, as in is whether would-be users must pay for their desired use of the author’s expression, or else limit their exploitation to “fair use” of that work. Prokofiev’s Peter and the Wolf could once be performed free of charge; after the right to perform it must be obtained in the marketplace. This is the same market- place, of course, that exists for the music of Prokofiev’s U. S. contemporaries: works of Copland and Bernstein, for example, that enjoy copyright protection, but nevertheless appear regularly in the programs of U. S. concertgoers. Before we joined Berne, domestic works and some for- eign works were protected under U. S. statutes and bilat- eral international agreements, while other foreign works were available at an artificially low (because royalty-free) —————— public. See URAA Joint Hearing 3 (statement of Rep. Hughes); at 121 (app. to statement of Lehman, Commerce Dept.); (state- ment of Shapiro, USTR); (statement of Christopher Schroe- der, DOJ). The reliance-party protections supplied by see at 10–11, were meant to address such concerns. See URAA Joint Hearing 148–149 (prepared statement of Schroeder). 34 Because Shostakovich was a pre-1973 Russian composer, his works were not protected in the United States. See U. S. Copyright Circular No. 38A: The International Copyright Relations of the United States 9, 11, n. 2 (copyright relations between the Soviet Union and the United States date to 1973). 30 GOLAN v. HOLDER Opinion of the Court cost. By fully implementing Berne, Congress ensured that most works, whether foreign or domestic, would be gov- erned by the same legal regime. The phenomenon to which Congress responded is not new: Distortions of the same order occurred with greater frequency—and to the detriment of both foreign and domestic authors—when, before 1891, foreign works were excluded entirely from U. S. copyright protection. See Kampelman, The United States and International Copyright, 41 Am. J. Int’l L. 40, 413 (1947) (“American readers were less inclined to read the novels of Cooper or Hawthorne for a dollar when they could buy a novel of Scott or Dickens for a quarter.”). Section 514 continued the trend toward a harmonized copyright regime by placing foreign works in the position they would have occupied if the current regime had been in effect when those works were created and first pub- lished. Authors once deprived of protection are spared the continuing effects of that initial deprivation; gives them nothing more than the benefit of their labors during whatever time remains before the normal copyright term expires.35 Unlike petitioners, the dissent makes much of the so- called “orphan works” problem. See post, at 11–14, 23–24. We readily acknowledge the difficulties would-be users of copyrightable materials may face in identifying or locating copyright owners. See generally U. S. Copyright Report on Orphan Works 21–40 (200). But as the dissent concedes, see post, at 13, this difficulty is hardly peculiar to works restored under It similarly afflicts, for —————— 35 Persistently deploring “ ‘restored copyright’ protection [because it] removes material from the public domain,” post, at 14, the dissent does not pause to consider when and why the material came to be lodged in that domain. Most of the works affected by got there after a term of zero or a term cut short by failure to observe U. S. formalities. See Cite as: 55 U. S. (2012) 31 Opinion of the Court instance, U. S. libraries that attempt to catalogue U. S. books. See post, at 12. See also Brief for American Li- brary Association et al. as Amici Curiae 22 (Section 514 “exacerbated,” but did not create, the problem of orphan works); U. S. Copyright at 41– (tracing orphan-works problem to Congress’ elimination of formali- ties, commencing with the 197 Copyright Act).3 Nor is this a matter appropriate for judicial, as opposed to legislative, resolution. Cf. Authors 770 F. Supp. 2d 77–78 (rejecting proposed “Google Books” class settlement because, inter alia, “the establishment of a mechanism for exploiting unclaimed books is a matter more suited for Congress than this Court” (citing )). In- deed, the host of policy and logistical questions identified by the dissent speak for themselves. Post, at 12. Despite “longstanding efforts,” see Authors Guild, 770 F. Supp. 2d, 78 (quoting statement of Marybeth Peters), Congress has not yet passed ameliorative orphan-works legislation of the sort enacted by other Berne members, see, e.g., Canada Copyright Act, R. S. C., 1985, c. C–42, (au- thorizing Copyright Board to license use of orphan works by persons unable, after making reasonable efforts, to locate the copyright owner). Heretofore, no one has sug- gested that the orphan-works issue should be addressed through our implementation of Berne, rather than through overarching legislation of the sort proposed in Congress and cited by the dissent. See post, at 23–24; U. S. Copyright Legal Issues in Mass Digitization 25–29 (discussing recent legislative efforts). Our unstinting adherence to Berne may add impetus to calls —————— 3 The pervasive problem of copyright piracy, noted post, at 13, like- wise is scarcely limited to protected foreign works formerly in the public domain. 32 GOLAN v. HOLDER Opinion of the Court for the enactment of such legislation. But resistance to Berne’s prescriptions surely is not a necessary or proper response to the pervasive question, what should Congress do about orphan works. IV Congress determined that U. S. interests were best served by our full participation in the dominant system of international copyright protection. Those interests in- clude ensuring exemplary compliance with our interna- tional obligations, securing greater protection for U. S. authors abroad, and remedying unequal treatment of foreign authors. The judgment expresses lies well within the ken of the political branches. It is our obliga- tion, of course, to determine whether the action Congress took, wise or not, encounters any constitutional shoal. For the reasons stated, we are satisfied it does not. The judg- ment of the Court of Appeals for the Tenth Circuit is therefore Affirmed. JUSTICE KAGAN took no part in the consideration or decision of this case. Cite as: 55 U. S. (2012) 33 Opinion Appendix of the of to opinion Court the Court APPENDIX Title 17 U.S. C. provides: “(a) AUTOMATIC PROTECTION AND TERM.— “(1) TERM.— “(A) Copyright subsists, in accordance with this sec- tion, in restored works, and vests automatically on the date of restoration. “(B) Any work in which copyright is restored under this section shall subsist for the remainder of the term of copyright that the work would have otherwise been grant- ed in the United States if the work never entered the public domain in the United States. “(2) EXCEPTION.—Any work in which the copyright was ever owned or administered by the Alien Property Custo- dian and in which the restored copyright would be owned by a government or instrumentality thereof, is not a re- stored work. “(b) OWNERSHIP OF RESTORED COPYRIGHT.—A restored work vests initially in the author or initial rightholder of the work as determined by the law of the source country of the work. “(c) FILING OF NOTICE OF INTENT TO ENFORCE RESTORED COPYRIGHT AGAINST RELIANCE PARTIES.—On or after the date of restoration, any person who owns a copyright in a restored work or an exclusive right therein may file with the Copyright a notice of intent to enforce that person’s copyright or exclusive right or may serve such a notice directly on a reliance party. Acceptance of a notice by the Copyright is effective as to any reliance parties but shall not create a presumption of the validity of any of the facts stated therein. Service on a reliance party is effective as to that reliance party and any other reliance parties with actual knowledge of such service and of the contents of that notice. “(d) REMEDIES FOR INFRINGEMENT OF RESTORED COPYRIGHTS.— 34 GOLAN v. HOLDER Opinion Appendix of the of to opinion Court the Court “(1) ENFORCEMENT OF COPYRIGHT IN RESTORED WORKS IN THE ABSENCE OF A RELIANCE PARTY.—As against any party who is not a reliance party, the remedies provided in chapter 5 of this title shall be available on or after the date of restoration of a restored copyright with respect to an act of infringement of the restored copyright that is commenced on or after the date of restoration. “(2) ENFORCEMENT OF COPYRIGHT IN RESTORED WORKS AS AGAINST RELIANCE PARTIES.—As against a reliance party, except to the extent provided in paragraphs (3) and (4), the remedies provided in chapter 5 of this title shall be available, with respect to an act of infringement of a re- stored copyright, on or after the date of restoration of the restored copyright if the requirements of either of the following subparagraphs are met: “(A)(i) The owner of the restored copyright (or such owner’s agent) or the owner of an exclusive right therein (or such owner’s agent) files with the Copyright during the 24-month period beginning on the date of res- toration, a notice of intent to enforce the restored copy- right; and “(ii)(I) the act of infringement commenced after the end of the 12-month period beginning on the date of publi- cation of the notice in the Federal Register; “(II) the act of infringement commenced before the end of the 12-month period described in subclause (I) and continued after the end of that 12-month period, in which case remedies shall be available only for infringement occurring after the end of that 12-month period; or “(III) copies or phonorecords of a work in which copyright has been restored under this section are made after publication of the notice of intent in the Federal Register. “(B)(i) The owner of the restored copyright (or such owner’s agent) or the owner of an exclusive right therein (or such owner’s agent) serves upon a reliance party a Cite as: 55 U. S. (2012) 35 Opinion Appendix of the of to opinion Court the Court notice of intent to enforce a restored copyright; and “(ii)(I) the act of infringement commenced after the end of the 12-month period beginning on the date the notice of intent is received; “(II) the act of infringement commenced before the end of the 12-month period described in subclause (I) and continued after the end of that 12-month period, in which case remedies shall be available only for the infringement occurring after the end of that 12-month period; or “(III) copies or phonorecords of a work in which copyright has been restored under this section are made after receipt of the notice of intent. “In the event that notice is provided under both subpara- graphs (A) and (B), the 12-month period referred to in such subparagraphs shall run from the earlier of publica- tion or service of notice. “(3) EXISTING DERIVATIVE WORKS.—(A) In the case of a derivative work that is based upon a restored work and is created— “(i) before the date of the enactment of the Uruguay Round Agreements Act, if the source country of the re- stored work is an eligible country on such date, or “(ii) before the date on which the source country of the restored work becomes an eligible country, if that country is not an eligible country on such date of enactment, “a reliance party may continue to exploit that derivative work for the duration of the restored copyright if the reliance party pays to the owner of the restored copyright reasonable compensation for conduct which would be subject to a remedy for infringement but for the provisions of this paragraph. “(B) In the absence of an agreement between the parties, the amount of such compensation shall be determined by an action in United States district court, and shall reflect any harm to the actual or potential market for or value of 3 GOLAN v. HOLDER Opinion Appendix of the of to opinion Court the Court the restored work from the reliance party’s continued exploitation of the work, as well as compensation for the relative contributions of expression of the author of the restored work and the reliance party to the derivative work. “(4) COMMENCEMENT OF INFRINGEMENT FOR RELIANCE PARTIES.—For purposes of section 412, in the case of reli- ance parties, infringement shall be deemed to have com- menced before registration when acts which would have constituted infringement had the restored work been subject to copyright were commenced before the date of restoration. “(e) NOTICES OF INTENT TO ENFORCE A RESTORED COPYRIGHT.— “(1) NOTICES OF INTENT FILED WITH THE COPYRIGHT OFFICE.—(A)(i) A notice of intent filed with the Copyright to enforce a restored copyright shall be signed by the owner of the restored copyright or the owner of an exclusive right therein, who files the notice under subsec- tion (d)(2)(A)(i) (hereafter in this paragraph referred to as the “owner”), or by the owner’s agent, shall identify the title of the restored work, and shall include an English translation of the title and any other alternative titles known to the owner by which the restored work may be identified, and an address and telephone number at which the owner may be contacted. If the notice is signed by an agent, the agency relationship must have been constituted in a writing signed by the owner before the filing of the notice. The Copyright may specifically require in regulations other information to be included in the notice, but failure to provide such other information shall not invalidate the notice or be a basis for refusal to list the restored work in the Federal Register. “(ii) If a work in which copyright is restored has no formal title, it shall be described in the notice of intent in detail sufficient to identify it. Cite as: 55 U. S. (2012) 37 Opinion Appendix of the of to opinion Court the Court “(iii) Minor errors or omissions may be corrected by further notice at any time after the notice of intent is filed. Notices of corrections for such minor errors or omissions shall be accepted after the period established in subsection (d)(2)(A)(i). Notices shall be published in the Federal Register pursuant to subparagraph (B). “(B)(i) The Register of Copyrights shall publish in the Federal Register, commencing not later than 4 months after the date of restoration for a particular nation and every 4 months thereafter for a period of 2 years, lists identifying restored works and the ownership thereof if a notice of intent to enforce a restored copyright has been filed. “(ii) Not less than 1 list containing all notices of intent to enforce shall be maintained in the Public Information of the Copyright and shall be available for public and copying during regular business hours pursuant to sections 705 and 708. “(C) The Register of Copyrights is authorized to fix reasonable fees based on the costs of receipt, processing, recording, and publication of notices of intent to enforce a restored copyright and corrections thereto. “(D)(i) Not later than 90 days before the date the Agreement on Trade-Related Aspects of Intellectual Prop- erty referred to in section 101(d)(15) of the Uruguay Round Agreements Act enters into force with respect to the United States, the Copyright shall issue and publish in the Federal Register regulations governing the filing under this subsection of notices of intent to enforce a restored copyright. “(ii) Such regulations shall permit owners of restored copyrights to file simultaneously for registration of the restored copyright. “(2) NOTICES OF INTENT SERVED ON A RELIANCE PARTY.— (A) Notices of intent to enforce a restored copyright may be served on a reliance party at any time after the date of 38 GOLAN v. HOLDER Opinion Appendix of the of to opinion Court the Court restoration of the restored copyright. “(B) Notices of intent to enforce a restored copyright served on a reliance party shall be signed by the owner or the owner’s agent, shall identify the restored work and the work in which the restored work is used, if any, in detail sufficient to identify them, and shall include an English translation of the title, any other alternative titles known to the owner by which the work may be identified, the use or uses to which the owner objects, and an address and telephone number at which the reliance party may contact the owner. If the notice is signed by an agent, the agency relationship must have been constituted in writing and signed by the owner before service of the notice. “(3) EFFECT OF MATERIAL FALSE STATEMENTS.—Any material false statement knowingly made with respect to any restored copyright identified in any notice of intent shall make void all claims and assertions made with respect to such restored copyright. “(f) IMMUNITY FROM WARRANTY AND RELATED LIABILITY.— “(1) IN GENERAL.—Any person who warrants, promises, or guarantees that a work does not violate an exclusive right granted in section 10 shall not be liable for legal, equitable, arbitral, or administrative relief if the war- ranty, promise, or guarantee is breached by virtue of the restoration of copyright under this section, if such warran- ty, promise, or guarantee is made before January 1, 1995. “(2) PERFORMANCES.—No person shall be required to perform any act if such performance is made infringing by virtue of the restoration of copyright under the provisions of this section, if the obligation to perform was undertaken before January 1, 1995. “(g) PROCLAMATION OF COPYRIGHT RESTORATION.— Whenever the President finds that a particular foreign nation extends, to works by authors who are nationals or domiciliaries of the United States, restored copyright Cite as: 55 U. S. (2012) 39 Opinion Appendix of the of to opinion Court the Court protection on substantially the same basis as provided under this section, the President may by proclamation extend restored protection provided under this section to any work— “(1) of which one or more of the authors is, on the date of first publication, a national, domiciliary, or sovereign authority of that nation; or “(2) which was first published in that nation. “The President may revise, suspend, or revoke any such proclamation or impose any conditions or limitations on protection under such a proclamation. “(h) DEFINITIONS.—For purposes of this section and sec- tion 109(a): “(1) The term “date of adherence or proclamation” means the earlier of the date on which a foreign nation which, as of the date the WTO Agreement enters into force with respect to the United States, is not a nation adhering to the Berne Convention or a WTO member country, becomes— “(A) a nation adhering to the Berne Convention; “(B) a WTO member country; “(C) a nation adhering to the WIPO Copyright Treaty; “(D) a nation adhering to the WIPO Performances and Phonograms Treaty; or “(E) subject to a Presidential proclamation under subsection (g). “(2) The “date of restoration” of a restored copyright is— “(A) January 1, 199, if the source country of the restored work is a nation adhering to the Berne Conven- tion or a WTO member country on such date, or “(B) the date of adherence or proclamation, in the case of any other source country of the restored work. “(3) The term “eligible country” means a nation, other than the United States, that— “(A) becomes a WTO member country after the date of the enactment of the Uruguay Round Agreements Act; 40 GOLAN v. HOLDER Opinion Appendix of the of to opinion Court the Court “(B) on such date of enactment is, or after such date of enactment becomes, a nation adhering to the Berne Convention; “(C) adheres to the WIPO Copyright Treaty; “(D) adheres to the WIPO Performances and Phono- grams Treaty; or “(E) after such date of enactment becomes subject to a proclamation under subsection (g). “(4) The term “reliance party” means any person who— “(A) with respect to a particular work, engages in acts, before the source country of that work becomes an eligible country, which would have violated section 10 if the restored work had been subject to copyright protection, and who, after the source country becomes an eligible country, continues to engage in such acts; “(B) before the source country of a particular work becomes an eligible country, makes or acquires 1 or more copies or phonorecords of that work; or “(C) as the result of the sale or other disposition of a derivative work covered under subsection (d)(3), or signifi- cant assets of a person described in subparagraph (A) or (B), is a successor, assignee, or licensee of that person. “(5) The term “restored copyright” means copyright in a restored work under this section. “() The term “restored work” means an original work of authorship that— “(A) is protected under subsection (a); “(B) is not in the public domain in its source country through expiration of term of protection; “(C) is in the public domain in the United States due to— “(i) noncompliance with formalities imposed at any time by United States copyright law, including failure of renewal, lack of proper notice, or failure to comply with any manufacturing requirements; “(ii) lack of subject matter protection in the case of Cite as: 55 U. S. (2012) 41 Opinion Appendix of the of to opinion Court the Court sound recordings fixed before February 15, 1972; or “(iii) lack of national eligibility; “(D) has at least one author or rightholder who was, at the time the work was created, a national or domiciliary of an eligible country, and if published, was first published in an eligible country and not published in the United States during the 30-day period following publication in such eligible country; and “(E) if the source country for the work is an eligible country solely by virtue of its adherence to the WIPO Performances and Phonograms Treaty, is a sound recording. “(7) The term “rightholder” means the person— “(A) who, with respect to a sound recording, first fixes a sound recording with authorization, or “(B) who has acquired rights from the person de- scribed in subparagraph (A) by means of any conveyance or by operation of law. “(8) The “source country” of a restored work is— “(A) a nation other than the United States “(B) in the case of an unpublished work— “(i) the eligible country in which the author or rightholder is a national or domiciliary, or, if a restored work has more than 1 author or rightholder, of which the majority of foreign authors or rightholders are nationals or domiciliaries; or “(ii) if the majority of authors or rightholders are not foreign, the nation other than the United States which has the most significant contacts with the work; and “(C) in the case of a published work— “(i) the eligible country in which the work is first published, or “(ii) if the restored work is published on the same day in 2 or more eligible countries, the eligible country which has the most significant contacts with the work.” Cite as: 55 U. S. (2012) 1 BREYER, J., dissenting SUPREME COURT OF THE UNITED STATES No. 10–545 LAWRENCE GOLAN, ET AL., PETITIONERS v. ERIC H. HOLDER, JR., ATTORNEY GENERAL, ET AL.	2,068
Justice Breyer	dissenting	false	Golan v. Holder	2012-01-18	null	https://www.courtlistener.com/opinion/2959739/golan-v-holder/	https://www.courtlistener.com/api/rest/v3/clusters/2959739/	2,012	2011-015	1	6	2	In order “[t]o promote the Progress of Science” (by which term the Founders meant “learning” or “knowledge”), the Constitution’s Copyright Clause grants Congress the power to “secur[e] for limited Times to Authors . . . the exclusive Right to their . . . Writings.” Art. I, §8, cl. 8. This “exclusive Right” allows its holder to charge a fee to those who wish to use a copyrighted work, and the ability to charge that fee encourages the production of new mate rial. In this sense, a copyright is, in Macaulay’s words, a “tax on readers for the purpose of giving a bounty to writ ers”—a bounty designed to encourage new production. As the Court said in Eldred, “ ‘[t]he economic philosophy behind the [Copyright] [C]lause . . . is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors.’ ” Eldred v. Ashcroft, 537 U.S. 186, 212, n. 18 (2003) (quoting Mazer v. Stein, 347 U.S. 201, 219 (1954)). See T. Macaulay, Speeches on Copyright 25 (E. Miller ed. 1913); E. Walterscheid, The Nature of the Intellectual Property Clause: A Study in Historical Per spective 125–126 (2002) (hereinafter Walterscheid). The statute before us, however, does not encourage anyone to produce a single new work. By definition, it bestows monetary rewards only on owners of old works— 2 GOLAN v. HOLDER BREYER, J., dissenting works that have already been created and already are in the American public domain. At the same time, the stat ute inhibits the dissemination of those works, foreign works published abroad after 1923, of which there are many millions, including films, works of art, innumerable photographs, and, of course, books—books that (in the absence of the statute) would assume their rightful places in computer-accessible databases, spreading knowledge throughout the world. See infra, at 10–13. In my view, the Copyright Clause does not authorize Congress to enact this statute. And I consequently dissent. I The possibility of eliciting new production is, and always has been, an essential precondition for American copyright protection. The Constitution’s words, “exclusive Right,” “limited Times,” “Progress of Science,” viewed through the lens of history underscore the legal significance of what the Court in Eldred referred to as the “economic philoso phy behind the Copyright Clause.” 537 U.S., at 212, n. 18 (brackets omitted). That philosophy understands copy right’s grants of limited monopoly privileges to authors as private benefits that are conferred for a public reason—to elicit new creation. Yet, as the Founders recognized, monopoly is a two edged sword. On the one hand, it can encourage produc tion of new works. In the absence of copyright protection, anyone might freely copy the products of an author’s creative labor, appropriating the benefits without incur ring the nonrepeatable costs of creation, thereby deterring authors from exerting themselves in the first place. On the other hand, copyright tends to restrict the dissemina tion (and use) of works once produced either because the absence of competition translates directly into higher consumer prices or because the need to secure copying permission sometimes imposes administrative costs that make it difficult for potential users of a copyrighted work to find its owner and strike a bargain. See W. Landes & Cite as: 565 U. S. ____ (2012) 3 BREYER, J., dissenting R. Posner, The Economic Structure of Intellectual Proper ty Law 68–70, 213–214 (2003). Consequently, the original British copyright statute, the Constitution’s Framers, and our case law all have recognized copyright’s resulting and necessary call for balance. At the time the Framers wrote the Constitution, they were well aware of Britain’s 18th-century copyright stat ute, the Statute of Anne, 8 Anne, ch. 19 (1710), and they were aware of the legal struggles that produced it. That statute sought in part to control, and to limit, preexisting monopolies that had emerged in the book trade as a result of the Crown’s having previously granted special privileg es to royal favorites. The Crown, for example, had char tered the Stationers’ Company, permitting it to regulate and to censor works on the government’s behalf. The Stationers had thereby acquired control over the disposi tion of copies of published works, from which emerged the Stationers’ copyright—a right conferred on company members, not authors, that was deemed to exist in perpe tuity. See L. Patterson, Copyright in Historical Perspec tive 1–16, 114–150 (1968) (hereinafter Patterson); Walter scheid 59–65; Gómez-Arostegui, The Untold Story of the First Copyright Suit Under the Statute of Anne in 1710, 25 Berkeley Tech. L. J. 1247, 1250–1256 (2010). To prevent the continuation of the booksellers’ monopoly and to encourage authors to write new books, Parliament enacted the Statute of Anne. It bore the title: “An Act for the Encouragement of Learning, by vesting the Copies of printed Books in the Authors or Purchasers of such Cop ies, during the Times therein mentioned.” And it granted authors (not publishers) and their assignees the “sole Right and Liberty of printing” their works for limited periods of time in order to encourage them “to compose and write useful Books.” 8 Anne, ch. 19, §1 (emphasis added). As one historian has put it, “[t]he central plank of the . . . Act was . . . a cultural quid pro quo. To encourage 4 GOLAN v. HOLDER BREYER, J., dissenting ‘learned Men to compose and write useful Books’ the state would provide a guaranteed, if temporally limited, right to print and reprint those works.” Deazley, The Myth of Copyright at Common Law, 62 Camb. L. J. 106, 108 (2003). At first, in their attempts to minimize their losses, the booksellers argued that authors had a perpetual com mon-law copyright in their works deriving from their natural rights as creators. But the House of Lords ulti mately held in Donaldson v. Beckett, 1 Eng. Rep. 837 (1774), that the Statute of Anne had transformed any such perpetual common-law copyright into a copyright of a limited term designed to serve the public interest. Patter son 15–16, 153, 158–179; Deazley, supra, at 114–126. Many early colonial copyright statutes, patterned after the Statute of Anne, also stated that copyright’s objective was to encourage authors to produce new works and thereby improve learning. See U. S. Copyright Office, Copyright Enactments, Bulletin No. 3, pp. 1, 6, 10, 11, 17, 19 (rev. 1963) (statutes of Connecticut, New Jersey, Penn sylvania, South Carolina, Georgia, and New York); Wal terscheid 74–75; Bracha, The Adventures of the Statute of Anne in the Land of Unlimited Possibilities: The Life of a Legal Transplant, 25 Berkeley Tech. L. J. 1427, 1444– 1450 (2010). At least, that was the predominant view expressed to, or by, the Founders. Patterson 93. Thomas Jefferson, for example, initially expressed great uncertainty as to whether the Constitution should authorize the grant of copyrights and patents at all, writing that “the benefit even of limited monopolies is too doubtful” to warrant anything other than their “suppression.” Letter from Thomas Jefferson to James Madison (July 31, 1788), in 13 Papers of Thomas Jefferson 440, 443 (J. Boyd ed. 1956). James Madison also thought that “Monopolies . . . are justly classed among the greatest nu[i]sances in Govern ment.” Letter from James Madison to Thomas Jefferson Cite as: 565 U. S. ____ (2012) 5 BREYER, J., dissenting (Oct. 17, 1788), in 14 id., at 16, 21 (J. Boyd ed. 1958). But he argued that “in certain cases” such as copyright, mo nopolies should “be granted” (“with caution, and guarded with strictness agst abuse”) to serve as “compensation for a benefit actually gained to the community . . . which the owner might otherwise withhold from public use.” Mo nopolies. Perpetuities. Corporations. Ecclesiastical En dowments. in J. Madison, Writings 756 (J. Rakove ed. 1999) (emphasis added). Jefferson eventually came to agree with Madison, supporting a limited conferral of monopoly rights but only “as an encouragement to men to pursue ideas which may produce utility.” Letter from Thomas Jefferson to Isaac McPherson (Aug. 13, 1813), in 6 Papers of Thomas Jefferson, at 379, 383 (J. Looney ed. 2009) (emphasis added). This utilitarian view of copyrights and patents, em braced by Jefferson and Madison, stands in contrast to the “natural rights” view underlying much of continental European copyright law—a view that the English booksellers promoted in an effort to limit their losses following the enactment of the Statute of Anne and that in part motivated the enactment of some of the colonial statutes. Patterson 158–179, 183–192. Premised on the idea that an author or inventor has an inherent right to the fruits of his labor, it mythically stems from a legend ary 6th-century statement of King Diarmed “ ‘to every cow her calf, and accordingly to every book its copy.’ ” A. Birrell, Seven Lectures on the Law and History of Copy right in Books 42 (1899). That view, though perhaps reflected in the Court’s opinion, ante, at 30, runs contrary to the more utilitarian views that influenced the writing of our own Constitution’s Copyright Clause. See S. Rick etson, The Berne Convention for the Protection of Literary and Artistic Works: 1886–1986, pp. 5–6 (1987) (The first French copyright laws “placed authors’ rights on a more elevated basis than the Act of Anne had done,” on the 6 GOLAN v. HOLDER BREYER, J., dissenting understanding that they were “simply according formal recognition to what was already inherent in the ‘very nature of things’ ”); S. Stewart, International Copyright and Neighbouring Rights 6–7 (2d ed. 1989) (describing the European system of droit d’auteur). This utilitarian understanding of the Copyright Clause has long been reflected in the Court’s case law. In Mazer, for example, the Court refers to copyright as embodying the view that “encouragement of individual effort by per- sonal gain is the best way to advance public welfare through the talents of authors and inventors.” 347 U.S., at 219 (emphasis added). In Twentieth Century Music Corp. v. Aiken, 422 U.S. 151 (1975), the Court says that underlying copyright is the understanding that “[c]reative work is to be encouraged and rewarded, but private moti- vation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts.” Id., at 156 (emphasis added). And in Sony Corp. of Amer- ica v. Universal City Studios, Inc., 464 U.S. 417 (1984), the Court, speaking of both copyrights and patents, points out that the “monopoly privileges that Congress may author ize are . . . [not] primarily designed to provide a special private benefit. Rather, the limited grant is a means by which an important public purpose may be achieved. It is intended to motivate the creative activity of authors . . . by the provision of a special reward.” Id., at 429 (emphasis added); see also, e.g., Graham v. John Deere Co. of Kansas City, 383 U.S. 1, 6 (1966) (The “constitutional command . . . ‘[to] promote the Progress [of Science]’ . . . is the stand- ard expressed in the Constitution and it may not be ig nored”); Fox Film Corp. v. Doyal, 286 U.S. 123, 127 (1932) (“The sole interest of the United States . . . lie[s] in the general benefits derived by the public from the labors of authors”). Congress has expressed similar views in congressional Reports on copyright legislation. Thus, for example, an Cite as: 565 U. S. ____ (2012) 7 BREYER, J., dissenting 1892 House Report states: “The object to be attained and the reason for the con stitutional grant of power are imbedded in the grant itself. They are ‘to promote the progress of science and the useful arts.’ . . . [The Clause says] nothing . . . about any desire or purpose to secure to the author or inventor his ‘natural right to his property.’ ” H. R. Rep. No. 1494, 52d Cong., 1st Sess., 2. Similarly, the congressional authors of the landmark 1909 Copyright Act wrote: “The Constitution . . . provides that Congress shall have the power to grant [copyrights] . . . [n]ot primari ly for the benefit of the author, . . . but because the policy is believed to be for the benefit of the great body of people, in that it will stimulate writing and inven- tion, to give some bonus to authors and inventors.” H. R. Rep. No. 2222, 60th Cong., 2d Sess., 7 (1909). And they went on to say: “Congress must consider . . . two questions: First, how much will the legislation stimulate the producer and so benefit the public; and, second, how much will the monopoly granted be detrimental to the public? The granting of such exclusive rights, under the proper terms and conditions, confers a benefit upon the pub lic that outweighs the evils of the temporary monop oly.” Ibid. The upshot is that text, history, and precedent demon strate that the Copyright Clause places great value on the power of copyright to elicit new production. Congress in particular cases may determine that copyright’s ability to do so outweighs any concomitant high prices, administra tive costs, and restrictions on dissemination. And when it does so, we must respect its judgment. See Eldred, 537 8 GOLAN v. HOLDER BREYER, J., dissenting U. S., at 222. But does the Clause empower Congress to enact a statute that withdraws works from the public domain, brings about higher prices and costs, and in doing so seriously restricts dissemination, particularly to those who need it for scholarly, educational, or cultural pur- poses—all without providing any additional incentive for the production of new material? That is the question before us. And, as I have said, I believe the answer is no. Congress in this statute has exceeded what are, under any plausible reading of the Copyright Clause, its permissible limits. II The Act before us says that it “restores” American copy right to a set of works, which, for the most part, did not previously enjoy American copyright protection. These works had fallen into America’s public domain, but as of the “restoration” date, they had not yet fallen into the pub lic domain of the foreign country where they originated. The statute covers works originating almost anywhere outside the United States. See 17 U.S. C. §104A(h)(3) (setting out eligibility criteria); U. S. Copyright Office, Circular No. 38A: International Copyright Relations of the United States (2010). The relevant set of works consists primarily of works originating abroad that did not obtain, or at some point lost, American copyright protection be cause (1) the author failed to comply with applicable American copyright formalities (such as notice or renew al), or (2) the nation in which they were first published then lacked copyright relations with the United States, or (3) they are sound recordings fixed before February 15, 1972. §104A(h)(6)(C). A work must also satisfy other technical requirements: It must have had a rightholder who was a national or resident of an eligible country on the day it was created; and it cannot have been published in the United States within 30 days of its first publication. Cite as: 565 U. S. ____ (2012) 9 BREYER, J., dissenting §104A(h)(6)(D). The Act grants these works a copyright that expires at the time it would have expired had the author obtained a full American copyright term starting from the date on which the work was first published (in the foreign country). §104A(a)(1)(B). The Act mainly applies to works first published abroad between 1923 and 1989. It does not apply significantly to earlier works because any work published before 1921 would have fallen into the public domain before 1977 had it received a full American copyright term, while works published between 1921 and 1923 obtained a “restored” copyright that expired before the 1998 Sonny Bono Copy right Term Extension Act, and so could have lasted two years at most. See Tit. I, §101, 90 Stat. 2574 (extending the copyright term of works still under copyright in 1977 to 75 years); 17 U.S. C. §304(b) (extending the copyright term of works still under copyright in 1998 to 95 years). It has less impact on more recent works because in 1989 the United States became a Berne member, abolished the copyright notice requirement, and thenceforth provided prospective copyright protection throughout the Berne Union. See R. Schechter & J. Thomas, Intellectual Prop erty: The Law of Copyrights, Patents and Trademarks 75– 77 (2003); §7, 102 Stat. 2857–2858 (codified as amended at 17 U.S. C. §§401–406). Despite these temporal limitations, the Act covers vast numbers of works. The first category includes works published in countries that had copyright relations with the United States during this time period, such as most of Western Europe and Latin America, Australia, and Japan, see Circular No. 38A, supra, at 2–10, whose authors did not satisfy American copyright formalities, perhaps be cause the author, who may not have sought an American copyright, published the book abroad without proper American notice, or perhaps because the author obtained a valid American copyright but failed to renew it. 10 GOLAN v. HOLDER BREYER, J., dissenting The second category (works that entered the public domain due to a lack of copyright relations) includes, among others, all works published in Russia and other countries of the former Soviet Union before May 1973 (when the U. S. S. R. joined the Universal Copyright Con vention (UCC)), all works published in the People’s Repub lic of China before March 1992 (when bilateral copyright relations between the People’s Republic and the United States were first established), all South Korean works published before October 1987 (when South Korea joined the UCC), and all Egyptian and Turkish works published before March 1989 (when the United States joined Berne). See id., at 2–10, and 11, nn. 2, 5, 6. The third category covers all sound recordings from eligible foreign countries published after February 15, 1972. The practical significance of federal copyright resto ration to this category of works is less clear, since these works received, and continued to receive, copyright protec tion under state law. See 17 U.S. C. §301(c). Apparently there are no precise figures about the num ber of works the Act affects, but in 1996 the then-Register of Copyrights, Marybeth Peters, thought that they “proba bly number in the millions.” The Year in Review: Accom plishments and Objectives of the U. S. Copyright Office, 7 Ford. Intellectual Property Media & Entertainment L. J. 25, 31 (1996). A The provision before us takes works from the public domain, at least as of January 1, 1996. See §104A(h)(2)(A) (setting “restoration” dates). It then restricts the dissemi nation of those works in two ways. First, “restored copyright” holders can now charge fees for works that consumers previously used for free. The price of a score of Shostakovich’s Preludes and Fugues Op. 87, for example, has risen by a multiple of seven. Brief for Cite as: 565 U. S. ____ (2012) 11 BREYER, J., dissenting Conductors Guild et al. as Amici Curiae 11. And, as the Court recognizes, an orchestra that once could perform “Peter and the Wolf . . . free of charge” will now have to buy the “right to perform it . . . in the marketplace.” Ante, at 29. But for the case of certain “derivative” works, §104A(d)(3), the “restored copyright” holder, like other copyright holders, can charge what the market will bear. If a school orchestra or other nonprofit organization can not afford the new charges, so be it. They will have to do without—aggravating the already serious problem of cultural education in the United States. See Brief for Conductors Guild et al. as Amici Curiae 4–5, 7–8 (describ ing the inability of many orchestras to pay for the rental of sheet music covered by “restored copyright[s]”). Second, and at least as important, the statute creates administrative costs, such as the costs of determining whether a work is the subject of a “restored copyright,” searching for a “restored copyright” holder, and negotiat ing a fee. Congress has tried to ease the administrative burden of contacting copyright holders and negotiating prices for those whom the statute calls “reliance part[ies],” namely those who previously had used such works when they were freely available in the public domain. §104A(h)(4). But Congress has done nothing to ease the administrative burden of securing permission from copy right owners that is placed upon those who want to use a work that they did not previously use, and this is a partic ular problem when it comes to “orphan works”—older and more obscure works with minimal commercial value that have copyright owners who are difficult or impossible to track down. Unusually high administrative costs threaten to limit severely the distribution and use of those works— works which, despite their characteristic lack of economic value, can prove culturally invaluable. There are millions of such works. For example, accord ing to European Union figures, there are 13 million or 12 GOLAN v. HOLDER BREYER, J., dissenting phan books in the European Union (13% of the total number of books in-copyright there), 225,000 orphan films in European film archives, and 17 million orphan photo graphs in United Kingdom museums. A. Vuopala, As sessment of the Orphan works issue and Costs for Rights Clearance 19, 25 (2010), online at http://ec.europa.eu/ information_society/activities/digital_libraries/doc/reports_ orphan/anna_report.pdf (all Internet materials as visited Jan. 13, 2012, and available in Clerk of Court’s case file). How is a university, a film collector, a musician, a data base compiler, or a scholar now to obtain permission to use any such lesser known foreign work previously in the American public domain? Consider the questions that any such individual, group, or institution usually must answer: Is the work eligible for restoration under the statute? If so, who now holds the copyright—the author? an heir? a publisher? an association? a long-lost cousin? Whom must we contact? What is the address? Suppose no one answers? How do we conduct a negotiation? To find answers to these, and similar questions, costs money. The cost to the University of Michigan and the Institute of Museum and Library Services, for example, to determine the copyright status of books contained in the HathiTrust Digital Library that were published in the United States from 1923 to 1963 will exceed $1 million. Brief for American Library Assn. et al. as Amici Curiae 15. It is consequently not surprising to learn that the Los Angeles Public Library has been unable to make its collec tion of Mexican folk music publicly available because of problems locating copyright owners, that a Jewish cultural organization has abandoned similar efforts to make avail able Jewish cultural music and other materials, or that film preservers, museums, universities, scholars, database compilers, and others report that the administrative costs associated with trying to locate foreign copyright owners have forced them to curtail their cultural, scholarly, or Cite as: 565 U. S. ____ (2012) 13 BREYER, J., dissenting other work-preserving efforts. See, e.g., Comments of the Library Copyright Alliance in Response to the U. S. Copy right Office’s Inquiry on Orphan Works 5 (Mar. 25, 2005), online at http://www.arl.org/bm~doc/lcacomment0305.pdf; Comments of Creative Commons and Save The Music in Response to the U. S. Copyright Office’s Inquiry on Orphan Works (Mar. 25, 2005), online at http:// www.copyright.gov/orphan/comments/OW0643-STM- CreativeCommons.pdf; General Agreement on Tariffs and Trade (GATT): Intellectual Property Provisions, Joint Hearing before the Subcommittee on Intellectual Property and Judicial Administration of the House Committee on the Judiciary and the Subcommittee on Patents, Copy rights and Trademarks of the Senate Committee on the Judiciary, 103d Cong., 2d Sess., 131, 273 (1994) (hereinaf ter Joint Hearing) (statement of Larry Urbanski, Chair man of the Fairness in Copyright Coalition and President of Moviecraft, Inc.); Brief for American Library Assn. et al. as Amici Curiae 6–23; Brief for Creative Commons Corp. as Amicus Curiae 7–8; Brief for Project Petrucci, LLC, as Amicus Curiae 10–11. These high administrative costs can prove counterpro ductive in another way. They will tempt some potential users to “steal” or “pirate” works rather than do without. And piracy often begets piracy, breeding the destructive habit of taking copyrighted works without paying for them, even where payment is possible. Such habits ignore the critical role copyright plays in the creation of new works, while reflecting a false belief that new creation appears by magic without thought or hope of compensation. B I recognize that ordinary copyright protection also comes accompanied with dissemination-restricting royalty charges and administrative costs. But here the re 14 GOLAN v. HOLDER BREYER, J., dissenting strictions work special harm. For one thing, the foreign location of restored works means higher than ordinary administrative costs. For another, the statute’s technical requirements make it very difficult to establish whether a work has had its copyright restored by the statute. Gard, In the Trenches with §104A: An Evaluation of the Parties’ Arguments in Golan v. Holder as It Heads to the Supreme Court, 64 Vand. L. Rev. En Banc 199, 216–220 (2011) (describing difficulties encountered in compiling the in formation necessary to create an online tool to determine whether the statute applies in any given case). Worst of all, “restored copyright” protection removes material from the public domain. In doing so, it reverses the payment expectations of those who used, or intended to use, works that they thought belonged to them. Were Congress to act similarly with respect to well-established property rights, the problem would be obvious. This stat ute analogously restricts, and thereby diminishes, Ameri cans’ preexisting freedom to use formerly public domain material in their expressive activities. Thus, while the majority correctly observes that the dissemination-restricting harms of copyright normally present problems appropriate for legislation to resolve, ante, at 31–32, the question is whether the Copyright Clause permits Congress seriously to exacerbate such a problem by taking works out of the public domain without a countervailing benefit. This question is appropriate for judicial resolution. Indeed, unlike Eldred where the Court had to decide a complicated line-drawing question—when is a copyright term too long?—here an easily administra ble standard is available—a standard that would require works that have already fallen into the public domain to stay there. The several, just mentioned features of the present statute are important, for they distinguish it from other copyright laws. By removing material from the public Cite as: 565 U. S. ____ (2012) 15 BREYER, J., dissenting domain, the statute, in literal terms, “abridges” a preexist ing freedom to speak. In practical terms, members of the public might well have decided what to say, as well as when and how to say it, in part by reviewing with a view to repeating, expression that they reasonably believed was, or would be, freely available. Given these speech implications, it is not surprising that Congress has long sought to protect public domain material when revising the copyright laws. See infra, at 19 (listing instances). And this Court has assumed the particular importance of public domain material in roughly analogous circumstanc es. See Graham, 383 U.S., at 6 (“Congress may not au thorize the issuance of patents whose effects are to remove existent knowledge from the public domain”); Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470, 484 (1974) (trade secret protection is not incompatible with “policy that matter once in the public domain must remain in the public do main”); Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 496 (1975) (First Amendment prohibits sanctioning press for publishing material disclosed in public court docu ments); see also Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23, 33 (2003) (“The right to copy . . . once a copyright has expired . . . passes to the public” (internal quotation marks omitted)). Moreover, whereas forward-looking copyright laws tend to benefit those whose identities are not yet known (the writer who has not yet written a book, the musician who has not yet composed a song), when a copyright law is primarily backward looking the risk is greater that Con gress is trying to help known beneficiaries at the expense of badly organized unknown users who find it difficult to argue and present their case to Congress. In Eldred, I thought this problem was severe. See generally 537 U.S., at 243–266 (dissenting opinion). And in light of the fact that Congress, with one minor exception, heard testimony only from the representatives of existing copyright hold 16 GOLAN v. HOLDER BREYER, J., dissenting ers, who hoped that passage of the statute would enable them to benefit from reciprocal treatment of American authors abroad, infra, at 21, I cannot say that even here the problem, while much diminished, was nonexistent. I agree with the majority that, in doing so, this statute does not discriminate among speakers based on their viewpoints or subject matter. Ante, at 27. But such con siderations do not exhaust potential First Amendment problems. Cf. Sorrell v. IMS Health Inc., 564 U. S. ___, ___ (2011) (slip op., at 8) (finding First Amendment prob lem in statute that prohibits drug manufacturers from using publicly available prescriber-identifying information in their marketing efforts in part because it “disfavor[ed] specific speakers”); Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 659 (1994) (“Regulations that discrim inate among media, or among different speakers within a single medium, often present serious First Amendment concerns”). Taken together, these speech-related harms (e.g., re stricting use of previously available material; reversing payment expectations; rewarding rent-seekers at the public’s expense) at least show the presence of a First Amendment interest. And that is enough. For present purposes, I need not decide whether the harms to that interest show a violation of the First Amendment. I need only point to the importance of interpreting the Constitu tion as a single document—a document that we should not read as setting the Copyright Clause and the First Amendment at cross-purposes. Nor need I advocate the application here of strict or specially heightened review. I need only find that the First Amendment interest is im portant enough to require courts to scrutinize with some care the reasons claimed to justify the Act in order to determine whether they constitute reasonable copyright related justifications for the serious harms, including speech-related harms, which the Act seems likely to Cite as: 565 U. S. ____ (2012) 17 BREYER, J., dissenting impose. C 1 This statute does not serve copyright’s traditional public ends, namely the creation of monetary awards that “moti vate the creative activity of authors,” Sony, 464 U.S., at 429, “encourag[e] individual effort,” Mazer, 347 U.S., at 219, and thereby “serve the cause of promoting broad public availability of literature, music, and the other arts,” Twentieth Century Music, 422 U.S., at 156. The statute grants its “restored copyright[s]” only to works already produced. It provides no monetary incentive to produce anything new. Unlike other American copyright statutes from the time of the Founders onwards, including the statute at issue in Eldred, it lacks any significant copy right-related quid pro quo. The majority seeks to avoid this awkward fact by refer ring to past congressional practice that mostly suggests that Congress may provide new or increased protection both to newly created and to previously created, works. Ante, at 16, 18; Act of May 31, 1790, §1, 1 Stat. 124 (con ferring its new federal copyright on new works as well as old); Act of July 3, 1832, §3, 4 Stat. 559 (authorizing new patents for past and future inventors who inadvertently failed to comply with applicable statutory formalities); McClurg v. Kingsland, 1 How. 202 (1843) (applying an act deeming a past or future inventor’s patent valid despite it being briefly used by, for example, the inventor’s employ er). I do not dispute that copyright power. Insofar as such a statute does the former, i.e., extends protection to newly created material, it embodies copyright’s traditional justi fication—eliciting new production. And I do not doubt that Congress may then also include existing works within the scope of, say, increased protection for equitable and administrative reasons. See Eldred, 537 U.S. at 204, 18 GOLAN v. HOLDER BREYER, J., dissenting 214–215 (describing equitable reasons for applying newly extended copyright terms to future and existing copyrights alike). The statute before us, however, does not directly elicit any new production. Compare id., at 204–208; (ma jority opinion) (noting that statute’s extended term would apply to newly created material, and finding that the determination of the likelihood of its eliciting new produc tion in practice was a matter for Congress to determine), with id., at 243–267 (BREYER, J., dissenting) (expressing the view that there is little likelihood, in practice, that the statute would elicit new material). See also Walterscheid 219 (the 1790 Congress likely thought it was substituting federal protection for preexisting state common-law pro tections); Maher, Copyright Term, Retrospective Exten sion, and the Copyright Law of 1790 in Historical Context, 49 J. Copyright Soc. USA 1021, 1023–1024, and n. 8 (2002) (numerical estimate suggesting that 1790 Act removed only a small number of books from public domain). The other statutes to which the majority refers are private bills, statutes retroactively granting protection in wartime, or the like. Ante, at 16–19; Act of Feb. 19, 1849, ch. 57, 9 Stat. 763 (Levi Corson); Act of June 23, 1874, ch. 534, 18 Stat., pt. 3, p. 618 (Tod Helmuth); Act of Feb. 17, 1898, ch. 29, 30 Stat. 1396 (Judson Jones); Act of Dec. 18, 1919, ch. 11, 41 Stat. 368; Act of Sept. 25, 1941, ch. 421, 55 Stat. 732; see also Evans v. Jordan, 9 Cranch 199 (1815) (upholding a private bill restoring patent protection to a flour mill). But special circumstances, like wars, hurri canes, earthquakes, and other disasters, prevent the realization in practice of a reasonable expectation of secur ing or maintaining a preexisting right. Private bills are designed to provide special exceptions for comparable equitable reasons. See also Act of Mar. 3, 1893, ch. 215, 27 Stat. 743 (similar, as far as I can tell). To find in these laws an important analogy to the present law, which for Cite as: 565 U. S. ____ (2012) 19 BREYER, J., dissenting the most part covers works that the author did not expect to protect in America (and often did not particularly want to protect), seems somewhat farfetched. In fact, Congressional practice shows the contrary. It consists of a virtually unbroken string of legislation pre venting the withdrawal of works from the public domain. See, e.g., Berne Convention Implementation Act of 1988, §12, 102 Stat. 2860 (the Act “does not provide copyright protection for any work that is in the public domain in the United States”); Copyright Act of 1976, Tit. I, §101, 90 Stat. 2573 (declining to extend copyright protection to any work that is in the public domain prior to the Act taking effect); Copyright Act of 1909, §7, 35 Stat. 1077 (“[N]o copyright shall subsist in the original text of any work which is in the public domain, or in any work which was published in this country or any foreign country prior to the going into effect of this Act and has not been already copyrighted in the United States”); Act to Amend the Several Acts Respecting Copy Rights §16, 4 Stat. 439 (the Act “shall not extend to any copyright heretofore secured, the term of which has already expired”); see also H. R. Rep. No. 1742, 87th Cong., 2d Sess., 3 (1962) (expressing concern that because “it is not possible to revive expired terms of copyright, it seems to the committee to be desira ble to suspend further expiration of copyright for a period long enough to enable the working out of remaining obsta cles to the overall revision of the copyright law”). 2 The majority makes several other arguments. First, it argues that the Clause does not require the “creation of at least one new work,” ante, at 20, but may instead “promote the Progress of Science” in other ways. And it specifically mentions the “dissemination of existing and future works” as determinative here. Ante, at 20–23, and n. 25. The industry experts to whom the majority refers argue that 20 GOLAN v. HOLDER BREYER, J., dissenting copyright protection of already existing works can help, say, music publishers or film distributers raise prices, produce extra profits and consequently lead them to pub lish or distribute works they might otherwise have ig nored. But ordinarily a copyright—since it is a monopoly on copying—restricts dissemination of a work once pro duced compared to a competitive market. And simply making the industry richer does not mean that the indus try, when it makes an ordinary forward-looking economic calculus, will distribute works not previously distributed. The industry experts might mean that temporary extra profits will lead them to invest in the development of a market, say, by advertising. But this kind of argument, which can be made by distributers of all sorts of goods, ranging from kiwi fruit to Swedish furniture, has little if anything to do with the nonrepeatable costs of initial creation, which is the special concern of copyright protec tion. See supra, at 2–3. Moreover, the argument proves too much. It is the kind of argument that the Stationers’ Company might well have made and which the British Parliament rejected. Cf. Patterson 154–155 (describing failed booksellers’ bill seeking protection from foreign competition through an extension of the copyright term). It is the kind of argu ment that could justify a legislature’s withdrawing from the public domain the works, say, of Hawthorne or of Swift or for that matter the King James Bible in order to en courage further publication of those works; and, it could even more easily justify similar action in the case of lesser known early works, perhaps those of the Venerable Bede. The Court has not, to my knowledge, previously accepted such a rationale—a rationale well removed from the spe cial economic circumstances that surround the nonrepeat able costs of the initial creation of a “Writing.” Supra, at 2. And I fear that doing so would read the Copyright Clause as if it were a blank check made out in favor of Cite as: 565 U. S. ____ (2012) 21 BREYER, J., dissenting those who are not themselves creators. It is not surprising that the copyright holders’ repre sentatives who appeared before Congress did not empha size this argument. (With one minor exception only those representatives appeared, see generally Joint Hearing; the Copyright Office did not testify, id., at 239.) Rather, they focused on the Berne Convention itself. By that time, Congress had already protected all new works of Berne members. But it had not provided additional protection to preexisting foreign works that were then in the American public domain. Industry witnesses testified that with drawing such works from the American public domain would permit foreign copyright owners to charge American consumers more for their products; and that, as a result, the United States would be able to persuade foreign coun tries to allow American holders of preexisting copyrights to charge foreign customers more money for their prod ucts. See id., at 241 (statement of Eric Smith, Executive Director and General Counsel, International Intellectual Property Alliance) (“[F]ailure to [comply with Article 18] will . . . undermine the ability of the United States to press other countries to implement the same sort of protection in their implementing legislation currently pending in many legislatures around the globe”); id., at 253 (statement of Matt Gerson, Vice President for Congressional Affairs, Motion Picture Assn. of America) (similar). See also id., at 85 (statement of Xavier Becerra, House Judiciary Commit tee member) (“[R]etroactivity . . . is probably the best way to ensure that some of our older American works, any thing from Motown, to ‘Star Trek,’ to ‘The Hardy Boys’ get the protection in some of these emerging foreign markets. It is important to ensure that countries no longer use our U. S. law as an excuse for not extending retroactive copy right protections to some of our own works”). But see id., at 272–279 (statement of Larry Urbanski, Chairman of the Fairness in Copyright Coalition and President of 22 GOLAN v. HOLDER BREYER, J., dissenting Moviecraft Inc.) (testifying against restoration on grounds similar to those set out, supra, at 10–13). This argument, whatever its intrinsic merits, is an ar gument that directly concerns a private benefit: how to obtain more money from the sales of existing products. It is not an argument about a public benefit, such as how to promote or to protect the creative process. Third, the majority points out that the statute “gives [authors] nothing more than the benefit of their labors during whatever time remains before the normal copyright term expires.” Ante, at 30. But insofar as it suggests that copyright should in general help authors obtain greater monetary rewards than needed to elicit new works, it rests upon primarily European, but not American, copyright concepts. See supra, at 5–6. Fourth, the majority argues that this statutory provi sion is necessary to fulfill our Berne Convention obliga tions. Ante, at 4–8. The Treaty, in Article 18, says that the “Convention shall apply to all works which, at the moment of its coming into force [i.e., 1989 in the case of the United States] have not yet fallen into the public domain in the country of origin through the expiry of the term of protection.” Berne Convention for the Protection of Literary and Artistic Works, Art. 18(1), Sept. 9, 1886, as revised at Stockholm on July 14, 1967, 828 U. N. T. S. 221, 251. The majority and Government say that this means we must protect the foreign works at issue here. And since the Berne Convention, taken as a whole, provides incentives for the creation of new works, I am willing to speculate, for argument’s sake, that the statute might indirectly encourage production of new works by making the United States’ place in the international copyright regime more secure. Still, I cannot find this argument sufficient to save the statute. For one thing, this is a dilemma of the Govern ment’s own making. The United States obtained the Cite as: 565 U. S. ____ (2012) 23 BREYER, J., dissenting benefits of Berne for many years despite its failure to enact a statute implementing Article 18. But in 1994, the United States and other nations signed the Agreement on Trade-Related Aspects of Intellectual Property Rights, which enabled signatories to use World Trade Organiza tion dispute resolution mechanisms to complain about other members’ Berne Convention violations. And at that time the Government, although it successfully secured reservations protecting other special features of American copyright law, made no effort to secure a reservation permitting the United States to keep some or all restored works in the American public domain. Indeed, it made no effort to do so despite the fact that Article 18 explicitly authorizes countries to negotiate exceptions to the Arti cle’s retroactivity principle. See Art. 18(3), ibid. (“The application of [the retroactivity] principle shall be subject to any provisions contained in special conventions to that effect existing or to be concluded between countries of the Union” (emphasis added)); Gervais, Golan v. Holder: A Look at the Constraints Imposed by the Berne Conven tion, 64 Vand. L. Rev. En Banc 147, 151–152 (2011); Gard, 64 Vand. L. Rev. En Banc, at 206. For another thing, the Convention does not require Congress to enact a statute that causes so much damage to public domain material. Article 18(3) also states that “the respective countries shall determine, each in so far as it is concerned, the conditions of application of this princi- ple.” 18 U. N. T. S., at 251 (emphasis added). Congress could have alleviated many of the costs that the statute imposes by, for example, creating forms of compulsory licensing, requiring “restored copyright” holders to provide necessary administrative information as a condition of protection, or insisting upon “reasonable royalties.” Cf. S. 2913, 110th Cong., 2d Sess. (2008) (legislation that would have limited judicial remedies against users of orphan works); H. R. 5889, 110th Cong., 2d Sess. (2008) 24 GOLAN v. HOLDER BREYER, J., dissenting (House version of same); American Society of Compos- ers, Authors and Publishers, http://www.ascap.com/ licensing/termsdefined.aspx (society of music copyright owners offering blanket licenses that give users the unlim ited right to perform any of its members’ songs for a fixed fee, thus reducing negotiation and enforcement costs). To say this is not to criticize the Convention or our joining it. Rather, it is to argue that the other branches of Government should have tried to follow the Convention and in particular its provisions offering compliance flexi bility. The fact that the statute has significant First Amendment costs is relevant in this respect, for that Amendment ordinarily requires courts to evaluate less restrictive, alternative possibilities. Doing so here, reveals that neither Congress nor the Executive took advantage of less-restrictive methods of compliance that the Convention itself provides. And that fact means that the Convention cannot provide the statute with a constitutionally suffi cient justification that is otherwise lacking. III The fact that, by withdrawing material from the public domain, the statute inhibits an important preexisting flow of information is sufficient, when combined with the other features of the statute that I have discussed, to convince me that the Copyright Clause, interpreted in the light of the First Amendment, does not authorize Congress to enact this statute. I respectfully dissent from the Court’s contrary conclusion	In order “[t]o promote the Progress of Science” (by which term the Founders meant “learning” or “knowledge”), the Constitution’s Copyright Clause grants Congress the power to “secur[e] for limited Times to Authors the exclusive Right to their Writings.” Art. I, cl. 8. This “exclusive Right” allows its holder to charge a fee to those who wish to use a copyrighted work, and the ability to charge that fee encourages the production of new mate rial. In this sense, a copyright is, in Macaulay’s words, a “tax on readers for the purpose of giving a bounty to writ ers”—a bounty designed to encourage new production. As the Court said in “ ‘[t]he economic philosophy behind the [Copyright] [C]lause is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors.’ ” 212, n. 18 (quoting 219 (1954)). See T. Macaulay, Speeches on Copyright 25 (E. Miller ed. 1913); E. Walterscheid, The Nature of the Intellectual Property Clause: A Study in Historical Per spective 125–12 (2002) (hereinafter Walterscheid). The statute before us, however, does not encourage anyone to produce a single new work. By definition, it bestows monetary rewards only on owners of old works— 2 GOLAN v. HOLDER BREYER, J., dissenting works that have already been created and already are in the American public domain. At the same time, the stat ute inhibits the dissemination of those works, foreign works published abroad after 1923, of which there are many millions, including films, works of art, innumerable photographs, and, of course, books—books that (in the absence of the statute) would assume their rightful places in computer-accessible databases, spreading knowledge through the world. See infra, at 10–13. In my view, the Copyright Clause does not authorize Congress to enact this statute. And I consequently dissent. I The possibility of eliciting new production is, and always has been, an essential precondition for American copyright protection. The Constitution’s words, “exclusive Right,” “limited Times,” “Progress of Science,” viewed through the lens of history underscore the legal significance of what the Court in referred to as the “economic philoso phy behind the Copyright Clause.” n. 18 (brackets omitted). That philosophy understands copy right’s grants of limited monopoly privileges to authors as private benefits that are conferred for a public reason—to elicit new creation. Yet, as the Founders recognized, monopoly is a two edged sword. On the one hand, it can encourage produc tion of new works. In the absence of copyright protection, anyone might freely copy the products of an author’s creative labor, appropriating the benefits with incur ring the nonrepeatable costs of creation, thereby deterring authors from exerting themselves in the first place. On the other hand, copyright tends to restrict the dissemina tion (and use) of works once produced either because the absence of competition translates directly into higher consumer prices or because the need to secure copying permission sometimes imposes administrative costs that make it difficult for potential users of a copyrighted work to find its owner and strike a bargain. See W. Landes & Cite as: 55 U. S. (2012) 3 BREYER, J., dissenting R. Posner, The Economic Structure of Intellectual Proper ty Law 8–70, 213–214 Consequently, the original British copyright statute, the Constitution’s Framers, and our case law all have recognized copyright’s resulting and necessary call for balance. At the time the Framers wrote the Constitution, they were well aware of Britain’s 18th-century copyright stat ute, the Statute of Anne, 8 Anne, ch. 19 (1710), and they were aware of the legal struggles that produced it. That statute sought in part to control, and to limit, preexisting monopolies that had emerged in the book trade as a result of the Crown’s having previously granted special privileg es to royal favorites. The Crown, for example, had char tered the Stationers’ Company, permitting it to regulate and to censor works on the government’s behalf. The Stationers had thereby acquired control over the disposi tion of copies of published works, from which emerged the Stationers’ copyright—a right conferred on company members, not authors, that was deemed to exist in perpe tuity. See L. Patterson, Copyright in Historical Perspec tive 1–1, 114–150 (198) (hereinafter Patterson); Walter scheid 59–5; Gómez-Arostegui, The Untold Story of the First Copyright Suit Under the Statute of Anne in 1710, 25 Berkeley Tech. L. J. 1247, 1250–125 (2010). To prevent the continuation of the booksellers’ monopoly and to encourage authors to write new books, Parliament enacted the Statute of Anne. It bore the title: “An Act for the Encouragement of Learning, by vesting the Copies of printed Books in the Authors or Purchasers of such Cop ies, during the Times therein mentioned.” And it granted authors (not publishers) and their assignees the “sole Right and Liberty of printing” their works for limited periods of time in order to encourage them “to compose and write useful Books.” 8 Anne, ch. 19, As one historian has put it, “[t]he central plank of the Act was a cultural quid pro quo. To encourage 4 GOLAN v. HOLDER BREYER, J., dissenting ‘learned Men to compose and write useful Books’ the state would provide a guaranteed, if temporally limited, right to print and reprint those works.” The Myth of Copyright at Common Law, 2 Camb. L. J. 10, 108 At first, in their attempts to minimize their losses, the booksellers argued that authors had a perpetual com mon-law copyright in their works deriving from their natural rights as creators. But the House of Lords ulti mately held in Donaldson v. Beckett, 1 Eng. Rep. 837 (1774), that the Statute of Anne had transformed any such perpetual common-law copyright into a copyright of a limited term designed to serve the public interest. Patter son 15–1, 153, 158–179; at 114–12. Many early colonial copyright statutes, patterned after the Statute of Anne, also stated that copyright’s objective was to encourage authors to produce new works and thereby improve learning. See U. S. Copyright Office, Copyright Enactments, Bulletin No. 3, pp. 1, 10, 11, 17, 19 (rev. 193) (statutes of Connecticut, New Jersey, Penn sylvania, Sh Carolina, Georgia, and New York); Wal terscheid 74–75; Bracha, The Adventures of the Statute of Anne in the Land of Unlimited Possibilities: The Life of a Legal Transplant, 25 Berkeley Tech. L. J. 1427, 1444– 1450 (2010). At least, that was the predominant view expressed to, or by, the Founders. Patterson 93. Thomas Jefferson, for example, initially expressed great uncertainty as to whether the Constitution should authorize the grant of copyrights and patents at all, writing that “the benefit even of limited monopolies is too doubtful” to warrant anything other than their “suppression.” Letter from Thomas Jefferson to James Madison (July 31, 1788), in 13 Papers of Thomas Jefferson 440, 443 (J. Boyd ed. 195). James Madison also thought that “Monopolies are justly classed among the greatest nu[i]sances in Govern ment.” Letter from James Madison to Thomas Jefferson Cite as: 55 U. S. (2012) 5 BREYER, J., dissenting (Oct. 17, 1788), in 14 But he argued that “in certain cases” such as copyright, mo nopolies should “be granted” (“with caution, and guarded with strictness agst abuse”) to serve as “compensation for a benefit actually gained to the community which the owner might otherwise withhold from public use.” Mo nopolies. Perpetuities. Corporations. Ecclesiastical En dowments. in J. Madison, Writings 75 (J. Rakove ed. 1999) Jefferson eventually came to agree with Madison, supporting a limited conferral of monopoly rights but only “as an encouragement to men to pursue ideas which may produce utility.” Letter from Thomas Jefferson to Isaac McPherson (Aug. 13, 1813), in Papers of Thomas Jefferson, at 379, 383 (J. Looney ed. 2009) This utilitarian view of copyrights and patents, em braced by Jefferson and Madison, stands in contrast to the “natural rights” view underlying much of continental European copyright law—a view that the English booksellers promoted in an effort to limit their losses following the enactment of the Statute of Anne and that in part motivated the enactment of some of the colonial statutes. Patterson 158–179, 183–192. Premised on the idea that an author or inventor has an inherent right to the fruits of his labor, it mythically stems from a legend ary th-century statement of King Diarmed “ ‘to every cow her calf, and accordingly to every book its copy.’ ” A. Birrell, Seven Lectures on the Law and History of Copy right in Books 42 (1899). That view, though perhaps reflected in the Court’s opinion, ante, at 30, runs contrary to the more utilitarian views that influenced the writing of our own Constitution’s Copyright Clause. See S. Rick etson, The Berne Convention for the Protection of Literary and Artistic Works: 188–198, pp. 5– (1987) (The first French copyright laws “placed authors’ rights on a more elevated basis than the Act of Anne had done,” on the GOLAN v. HOLDER BREYER, J., dissenting understanding that they were “simply according formal recognition to what was already inherent in the ‘very nature of things’ ”); S. Stewart, International Copyright and Neighbouring Rights –7 (2d ed. 1989) (describing the European system of droit d’auteur). This utilitarian understanding of the Copyright Clause has long been reflected in the Court’s case law. In Mazer, for example, the Court refers to copyright as embodying the view that “encouragement of individual effort by per- sonal gain is the best way to advance public welfare through the talents of authors and inventors.” 347 U.S., at 219 In Twentieth Century the Court says that underlying copyright is the understanding that “[c]reative work is to be encouraged and rewarded, but private moti- vation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts.” And in Sony Corp. of Amer- the Court, speaking of both copyrights and patents, points that the “monopoly privileges that Congress may author ize are [not] primarily designed to provide a special private benefit. Rather, the limited grant is a means by which an important public purpose may be achieved. It is intended to motivate the creative activity of authors by the provision of a special reward.” (emphasis added); see also, e.g., (The “constitutional command ‘[to] promote the Progress [of Science]’ is the stand- ard expressed in the Constitution and it may not be ig nored”); Fox Film 28 U.S. 123, (“The sole interest of the United States lie[s] in the general benefits derived by the public from the labors of authors”). Congress has expressed similar views in congressional Reports on copyright legislation. Thus, for example, an Cite as: 55 U. S. (2012) 7 BREYER, J., dissenting 1892 House Report states: “The object to be attained and the reason for the con stitutional grant of power are imbedded in the grant itself. They are ‘to promote the progress of science and the useful arts.’ [The Clause says] nothing ab any desire or purpose to secure to the author or inventor his ‘natural right to his property.’ ” H. R. Rep. No. 1494, 52d Cong., 1st Sess., 2. Similarly, the congressional authors of the landmark 1909 Copyright Act wrote: “The Constitution provides that Congress shall have the power to grant [copyrights] [n]ot primari ly for the benefit of the author, but because the policy is believed to be for the benefit of the great body of people, in that it will stimulate writing and inven- tion, to give some bonus to authors and inventors.” H. R. Rep. No. 2222, 0th Cong., 2d Sess., 7 (1909). And they went on to say: “Congress must consider two questions: First, how much will the legislation stimulate the producer and so benefit the public; and, second, how much will the monopoly granted be detrimental to the public? The granting of such exclusive rights, under the proper terms and conditions, confers a benefit upon the pub lic that weighs the evils of the temporary monop oly.” The upshot is that text, history, and precedent demon strate that the Copyright Clause places great value on the power of copyright to elicit new production. Congress in particular cases may determine that copyright’s ability to do so weighs any concomitant high prices, administra tive costs, and restrictions on dissemination. And when it does so, we must respect its judgment. See 537 8 GOLAN v. HOLDER BREYER, J., dissenting U. S., at 222. But does the Clause empower Congress to enact a statute that withdraws works from the public domain, brings ab higher prices and costs, and in doing so seriously restricts dissemination, particularly to those who need it for scholarly, educational, or cultural pur- poses—all with providing any additional incentive for the production of new material? That is the question before us. And, as I have said, I believe the answer is no. Congress in this statute has exceeded what are, under any plausible reading of the Copyright Clause, its permissible limits. II The Act before us says that it “restores” American copy right to a set of works, which, for the most part, did not previously enjoy American copyright protection. These works had fallen into America’s public domain, but as of the “restoration” date, they had not yet fallen into the pub lic domain of the foreign country where they originated. The statute covers works originating almost anywhere side the United States. See 17 U.S. C. 04A(h)(3) (setting eligibility criteria); U. S. Copyright Office, Circular No. : International Copyright Relations of the United States (2010). The relevant set of works consists primarily of works originating abroad that did not obtain, or at some point lost, American copyright protection be cause (1) the author failed to comply with applicable American copyright formalities (such as notice or renew al), or (2) the nation in which they were first published then lacked copyright relations with the United States, or (3) they are sound recordings fixed before February 15, 1972. 04A(h)()(C). A work must also satisfy other technical requirements: It must have had a rightholder who was a national or resident of an eligible country on the day it was created; and it cannot have been published in the United States within 30 days of its first publication. Cite as: 55 U. S. (2012) 9 BREYER, J., dissenting 04A(h)()(D). The Act grants these works a copyright that expires at the time it would have expired had the author obtained a full American copyright term starting from the date on which the work was first published (in the foreign country). 04A(a)(1)(B). The Act mainly applies to works first published abroad between 1923 and 1989. It does not apply significantly to earlier works because any work published before 1921 would have fallen into the public domain before 1977 had it received a full American copyright term, while works published between 1921 and 1923 obtained a “restored” copyright that expired before the 1998 Sonny Bono Copy right Term Extension Act, and so could have lasted two years at most. See Tit. I, 01, (extending the copyright term of works still under copyright in 1977 to 75 years); 17 U.S. C. (extending the copyright term of works still under copyright in 1998 to 95 years). It has less impact on more recent works because in 1989 the United States became a Berne member, abolished the copyright notice requirement, and thenceforth provided prospective copyright protection through the Berne Union. See R. Schechter & J. Thomas, Intellectual Prop erty: The Law of Copyrights, Patents and Trademarks 75– 77 ; –2858 (codified as amended at 17 U.S. C. §§401–40). Despite these temporal limitations, the Act covers vast numbers of works. The first category includes works published in countries that had copyright relations with the United States during this time period, such as most of Western Europe and Latin America, Australia, and Japan, see Circular No. at 2–10, whose authors did not satisfy American copyright formalities, perhaps be cause the author, who may not have sought an American copyright, published the book abroad with proper American notice, or perhaps because the author obtained a valid American copyright but failed to renew it. 10 GOLAN v. HOLDER BREYER, J., dissenting The second category (works that entered the public domain due to a lack of copyright relations) includes, among others, all works published in Russia and other countries of the former Soviet Union before May 1973 (when the U. S. S. R. joined the Universal Copyright Con vention (UCC)), all works published in the People’s Repub lic of China before March 1992 (when bilateral copyright relations between the People’s Republic and the United States were first established), all Sh Korean works published before October 1987 (when Sh Korea joined the UCC), and all Egyptian and Turkish works published before March 1989 (when the United States joined Berne). See at 2–10, and 11, nn. 2, 5, The third category covers all sound recordings from eligible foreign countries published after February 15, 1972. The practical significance of federal copyright resto ration to this category of works is less clear, since these works received, and continued to receive, copyright protec tion under state law. See 17 U.S. C. Apparently there are no precise figures ab the num ber of works the Act affects, but in 199 the then-Register of Copyrights, Marybeth Peters, thought that they “proba bly number in the millions.” The Year in Review: Accom plishments and Objectives of the U. S. Copyright Office, 7 Ford. Intellectual Property Media & Entertainment L. J. 25, 31 (199). A The provision before us takes works from the public domain, at least as of January 1, 199. See 04A(h)(2)(A) (setting “restoration” dates). It then restricts the dissemi nation of those works in two ways. First, “restored copyright” holders can now charge fees for works that consumers previously used for free. The price of a score of Shostakovich’s Preludes and Fugues Op. 87, for example, has risen by a multiple of seven. Brief for Cite as: 55 U. S. (2012) 11 BREYER, J., dissenting Conductors Guild et al. as Amici Curiae 11. And, as the Court recognizes, an orchestra that once could perform “Peter and the Wolf free of charge” will now have to buy the “right to perform it in the marketplace.” Ante, at 29. But for the case of certain “derivative” works, 04A(d)(3), the “restored copyright” holder, like other copyright holders, can charge what the market will bear. If a school orchestra or other nonprofit organization can not afford the new charges, so be it. They will have to do with—aggravating the already serious problem of cultural education in the United States. See Brief for Conductors Guild et al. as Amici Curiae 4–5, 7–8 (describ ing the inability of many orchestras to pay for the rental of sheet music covered by “restored copyright[s]”). Second, and at least as important, the statute creates administrative costs, such as the costs of determining whether a work is the subject of a “restored copyright,” searching for a “restored copyright” holder, and negotiat ing a fee. Congress has tried to ease the administrative burden of contacting copyright holders and negotiating prices for those whom the statute calls “reliance part[ies],” namely those who previously had used such works when they were freely available in the public domain. 04A(h)(4). But Congress has done nothing to ease the administrative burden of securing permission from copy right owners that is placed upon those who want to use a work that they did not previously use, and this is a partic ular problem when it comes to “orphan works”—older and more obscure works with minimal commercial value that have copyright owners who are difficult or impossible to track down. Unusually high administrative costs threaten to limit severely the distribution and use of those works— works which, despite their characteristic lack of economic value, can prove culturally invaluable. There are millions of such works. For example, accord ing to European Union figures, there are 13 million or 12 GOLAN v. HOLDER BREYER, J., dissenting phan books in the European Union (13% of the total number of books in-copyright there), 225,000 orphan films in European film archives, and 17 million orphan photo graphs in United Kingdom museums. A. Vuopala, As sessment of the Orphan works issue and Costs for Rights Clearance 19, 25 (2010), online at http://ec.europa.eu/ information_society/activities/digital_libraries/doc/reports_ orphan/anna_report.pdf (all Internet materials as visited Jan. 13, 2012, and available in Clerk of Court’s case file). How is a university, a film collector, a musician, a data base compiler, or a scholar now to obtain permission to use any such lesser known foreign work previously in the American public domain? Consider the questions that any such individual, group, or institution usually must answer: Is the work eligible for restoration under the statute? If so, who now holds the copyright—the author? an heir? a publisher? an association? a long-lost cousin? Whom must we contact? What is the address? Suppose no one answers? How do we conduct a negotiation? To find answers to these, and similar questions, costs money. The cost to the University of Michigan and the Institute of Museum and Library Services, for example, to determine the copyright status of books contained in the HathiTrust Digital Library that were published in the United States from 1923 to 193 will exceed $1 million. Brief for American Library Assn. et al. as Amici Curiae 15. It is consequently not surprising to learn that the Los Angeles Public Library has been unable to make its collec tion of Mexican folk music publicly available because of problems locating copyright owners, that a Jewish cultural organization has abandoned similar efforts to make avail able Jewish cultural music and other materials, or that film preservers, museums, universities, scholars, database compilers, and others report that the administrative costs associated with trying to locate foreign copyright owners have forced them to curtail their cultural, scholarly, or Cite as: 55 U. S. (2012) 13 BREYER, J., dissenting other work-preserving efforts. See, e.g., Comments of the Library Copyright Alliance in Response to the U. S. Copy right Office’s Inquiry on Orphan Works 5 (Mar. 25, 2005), online at http://www.arl.org/bm~doc/lcacomment0305.pdf; Comments of Creative Commons and Save The in Response to the U. S. Copyright Office’s Inquiry on Orphan Works (Mar. 25, 2005), online at http:// www.copyright.gov/orphan/comments/OW043-STM- CreativeCommons.pdf; General Agreement on Tariffs and Trade (GATT): Intellectual Property Provisions, Joint Hearing before the Subcommittee on Intellectual Property and Judicial Administration of the House Committee on the Judiciary and the Subcommittee on Patents, Copy rights and Trademarks of the Senate Committee on the Judiciary, 103d Cong., 2d Sess., 131, 273 (hereinaf ter Joint Hearing) (statement of Larry Urbanski, Chair man of the Fairness in Copyright Coalition and President of Moviecraft, Inc.); Brief for American Library Assn. et al. as Amici Curiae –23; Brief for Creative Commons Corp. as Amicus Curiae 7–8; Brief for Project Petrucci, LLC, as Amicus Curiae 10–11. These high administrative costs can prove counterpro ductive in another way. They will tempt some potential users to “steal” or “pirate” works rather than do with. And piracy often begets piracy, breeding the destructive habit of taking copyrighted works with paying for them, even where payment is possible. Such habits ignore the critical role copyright plays in the creation of new works, while reflecting a false belief that new creation appears by magic with thought or hope of compensation. B I recognize that ordinary copyright protection also comes accompanied with dissemination-restricting royalty charges and administrative costs. But here the re 14 GOLAN v. HOLDER BREYER, J., dissenting strictions work special harm. For one thing, the foreign location of restored works means higher than ordinary administrative costs. For another, the statute’s technical requirements make it very difficult to establish whether a work has had its copyright restored by the statute. Gard, In the Trenches with 04A: An Evaluation of the Parties’ Arguments in Golan v. Holder as It Heads to the Supreme Court, 4 Vand. L. Rev. En Banc 199, 21–220 (2011) (describing difficulties encountered in compiling the in formation necessary to create an online tool to determine whether the statute applies in any given case). Worst of all, “restored copyright” protection removes material from the public domain. In doing so, it reverses the payment expectations of those who used, or intended to use, works that they thought belonged to them. Were Congress to act similarly with respect to well-established property rights, the problem would be obvious. This stat ute analogously restricts, and thereby diminishes, Ameri cans’ preexisting freedom to use formerly public domain material in their expressive activities. Thus, while the majority correctly observes that the dissemination-restricting harms of copyright normally present problems appropriate for legislation to resolve, ante, at 31–32, the question is whether the Copyright Clause permits Congress seriously to exacerbate such a problem by taking works of the public domain with a countervailing benefit. This question is appropriate for judicial resolution. Indeed, unlike where the Court had to decide a complicated line-drawing question—when is a copyright term too long?—here an easily administra ble standard is available—a standard that would require works that have already fallen into the public domain to stay there. The several, just mentioned features of the present statute are important, for they distinguish it from other copyright laws. By removing material from the public Cite as: 55 U. S. (2012) 15 BREYER, J., dissenting domain, the statute, in literal terms, “abridges” a preexist ing freedom to speak. In practical terms, members of the public might well have decided what to say, as well as when and how to say it, in part by reviewing with a view to repeating, expression that they reasonably believed was, or would be, freely available. Given these speech implications, it is not surprising that Congress has long sought to protect public domain material when revising the copyright laws. See infra, at 19 (listing instances). And this Court has assumed the particular importance of public domain material in roughly analogous circumstanc es. See 383 U.S., at (“Congress may not au thorize the issuance of patents whose effects are to remove existent knowledge from the public domain”); Kewanee Oil 41 U.S. 470, (trade secret protection is not incompatible with “policy that matter once in the public domain must remain in the public do main”); Cox Broadcasting 420 U.S. 49, 49 (First Amendment prohibits sanctioning press for publishing material disclosed in public court docu ments); see also Dastar (“The right to copy once a copyright has expired passes to the public” (internal quotation marks omitted)). Moreover, whereas forward-looking copyright laws tend to benefit those whose identities are not yet known (the writer who has not yet written a book, the musician who has not yet composed a song), when a copyright law is primarily backward looking the risk is greater that Con gress is trying to help known beneficiaries at the expense of badly organized unknown users who find it difficult to argue and present their case to Congress. In I thought this problem was severe. See generally 537 U.S., at 243–2 (dissenting opinion). And in light of the fact that Congress, with one minor exception, heard testimony only from the representatives of existing copyright hold 1 GOLAN v. HOLDER BREYER, J., dissenting ers, who hoped that passage of the statute would enable them to benefit from reciprocal treatment of American authors abroad, infra, at 21, I cannot say that even here the problem, while much diminished, was nonexistent. I agree with the majority that, in doing so, this statute does not discriminate among speakers based on their viewpoints or subject matter. Ante, at 27. But such con siderations do not exhaust potential First Amendment problems. Cf. Sorrell v. IMS Health Inc., 54 U. S. (2011) (slip op., at 8) (finding First Amendment prob lem in statute that prohibits drug manufacturers from using publicly available prescriber-identifying information in their marketing efforts in part because it “disfavor[ed] specific speakers”); Turner Broadcasting System, Inc. v. FCC, 512 U.S. 22, 59 (“Regulations that discrim inate among media, or among different speakers within a single medium, often present serious First Amendment concerns”). Taken together, these speech-related harms (e.g., re stricting use of previously available material; reversing payment expectations; rewarding rent-seekers at the public’s expense) at least show the presence of a First Amendment interest. And that is enough. For present purposes, I need not decide whether the harms to that interest show a violation of the First Amendment. I need only point to the importance of interpreting the Constitu tion as a single document—a document that we should not read as setting the Copyright Clause and the First Amendment at cross-purposes. Nor need I advocate the application here of strict or specially heightened review. I need only find that the First Amendment interest is im portant enough to require courts to scrutinize with some care the reasons claimed to justify the Act in order to determine whether they constitute reasonable copyright related justifications for the serious harms, including speech-related harms, which the Act seems likely to Cite as: 55 U. S. (2012) 17 BREYER, J., dissenting impose. C 1 This statute does not serve copyright’s traditional public ends, namely the creation of monetary awards that “moti vate the creative activity of authors,” Sony, 44 U.S., “encourag[e] individual effort,” Mazer, 347 U.S., at 219, and thereby “serve the cause of promoting broad public availability of literature, music, and the other arts,” Twentieth Century 422 U.S., The statute grants its “restored copyright[s]” only to works already produced. It provides no monetary incentive to produce anything new. Unlike other American copyright statutes from the time of the Founders onwards, including the statute at issue in it lacks any significant copy right-related quid pro quo. The majority seeks to avoid this awkward fact by refer ring to past congressional practice that mostly suggests that Congress may provide new or increased protection both to newly created and to previously created, works. Ante, at 1, 18; Act of May 31, 1790, (con ferring its new federal copyright on new works as well as old); Act of July 3, 1832, (authorizing new patents for past and future inventors who inadvertently failed to comply with applicable statutory formalities); (applying an act deeming a past or future inventor’s patent valid despite it being briefly used by, for example, the inventor’s employ er). I do not dispute that copyright power. Insofar as such a statute does the former, i.e., extends protection to newly created material, it embodies copyright’s traditional justi fication—eliciting new production. And I do not doubt that Congress may then also include existing works within the scope of, say, increased protection for equitable and administrative reasons. See 18 GOLAN v. HOLDER BREYER, J., dissenting 214–215 (describing equitable reasons for applying newly extended copyright terms to future and existing copyrights alike). The statute before us, however, does not directly elicit any new production. Compare at 204–208; (ma jority opinion) (noting that statute’s extended term would apply to newly created material, and finding that the determination of the likelihood of its eliciting new produc tion in practice was a matter for Congress to determine), with at 243–27 (BREYER, J., dissenting) (expressing the view that there is little likelihood, in practice, that the statute would elicit new material). See also Walterscheid 219 (the 1790 Congress likely thought it was substituting federal protection for preexisting state common-law pro tections); Maher, Copyright Term, Retrospective Exten sion, and the Copyright Law of 1790 in Historical Context, 49 J. Copyright Soc. USA 1021, 1023–1024, and n. 8 (2002) (numerical estimate suggesting that 1790 Act removed only a small number of books from public domain). The other statutes to which the majority refers are private bills, statutes retroactively granting protection in wartime, or the like. Ante, at 1–19; Act of Feb. 19, 1849, ch. 57, 9 Stat. 73 ; Act of June 23, 1874, ch. 534, 18 Stat., pt. 3, p. 18 (Tod Helmuth); Act of Feb. 17, 1898, ch. 29, 30 Stat. 139 ; Act of Dec. 18, 1919, ch. 11, 41 Stat. 38; Act of Sept. 25, 1941, ch. 421, 55 Stat. 732; see also (upholding a private bill restoring patent protection to a flour mill). But special circumstances, like wars, hurri canes, earthquakes, and other disasters, prevent the realization in practice of a reasonable expectation of secur ing or maintaining a preexisting right. Private bills are designed to provide special exceptions for comparable equitable reasons. See also Act of Mar. 3, 1893, ch. 215, To find in these laws an important analogy to the present law, which for Cite as: 55 U. S. (2012) 19 BREYER, J., dissenting the most part covers works that the author did not expect to protect in America (and often did not particularly want to protect), seems somewhat farfetched. In fact, Congressional practice shows the contrary. It consists of a virtually unbroken string of legislation pre venting the withdrawal of works from the public domain. See, e.g., Berne Convention Implementation Act of 1988, 2, 102 Stat. 280 (the Act “does not provide copyright protection for any work that is in the public domain in the United States”); Copyright Act of 197, Tit. I, 01, 90 Stat. 2573 (declining to extend copyright protection to any work that is in the public domain prior to the Act taking effect); Copyright Act of 1909, (“[N]o copyright shall subsist in the original text of any work which is in the public domain, or in any work which was published in this country or any foreign country prior to the going into effect of this Act and has not been already copyrighted in the United States”); Act to Amend the Several Acts Respecting Copy Rights (the Act “shall not extend to any copyright heretofore secured, the term of which has already expired”); see also H. R. Rep. No. 1742, 87th Cong., 2d Sess., 3 (192) (expressing concern that because “it is not possible to revive expired terms of copyright, it seems to the committee to be desira ble to suspend further expiration of copyright for a period long enough to enable the working of remaining obsta cles to the overall revision of the copyright law”). 2 The majority makes several other arguments. First, it argues that the Clause does not require the “creation of at least one new work,” ante, at 20, but may instead “promote the Progress of Science” in other ways. And it specifically mentions the “dissemination of existing and future works” as determinative here. Ante, at 20–23, and n. 25. The industry experts to whom the majority refers argue that 20 GOLAN v. HOLDER BREYER, J., dissenting copyright protection of already existing works can help, say, music publishers or film distributers raise prices, produce extra profits and consequently lead them to pub lish or distribute works they might otherwise have ig nored. But ordinarily a copyright—since it is a monopoly on copying—restricts dissemination of a work once pro duced compared to a competitive market. And simply making the industry richer does not mean that the indus try, when it makes an ordinary forward-looking economic calculus, will distribute works not previously distributed. The industry experts might mean that temporary extra profits will lead them to invest in the development of a market, say, by advertising. But this kind of argument, which can be made by distributers of all sorts of goods, ranging from kiwi fruit to Swedish furniture, has little if anything to do with the nonrepeatable costs of initial creation, which is the special concern of copyright protec tion. See at 2–3. Moreover, the argument proves too much. It is the kind of argument that the Stationers’ Company might well have made and which the British Parliament rejected. Cf. Patterson 154–155 (describing failed booksellers’ bill seeking protection from foreign competition through an extension of the copyright term). It is the kind of argu ment that could justify a legislature’s withdrawing from the public domain the works, say, of Hawthorne or of Swift or for that matter the King James Bible in order to en courage further publication of those works; and, it could even more easily justify similar action in the case of lesser known early works, perhaps those of the Venerable Bede. The Court has not, to my knowledge, previously accepted such a rationale—a rationale well removed from the spe cial economic circumstances that surround the nonrepeat able costs of the initial creation of a “Writing.” at 2. And I fear that doing so would read the Copyright Clause as if it were a blank check made in favor of Cite as: 55 U. S. (2012) 21 BREYER, J., dissenting those who are not themselves creators. It is not surprising that the copyright holders’ repre sentatives who appeared before Congress did not empha size this argument. (With one minor exception only those representatives appeared, see generally Joint Hearing; the Copyright Office did not testify,) Rather, they focused on the Berne Convention itself. By that time, Congress had already protected all new works of Berne members. But it had not provided additional protection to preexisting foreign works that were then in the American public domain. Industry witnesses testified that with drawing such works from the American public domain would permit foreign copyright owners to charge American consumers more for their products; and that, as a result, the United States would be able to persuade foreign coun tries to allow American holders of preexisting copyrights to charge foreign customers more money for their prod ucts. See (statement of Eric Smith, Executive Director and General Counsel, International Intellectual Property Alliance) (“[F]ailure to [comply with Article 18] will undermine the ability of the United States to press other countries to implement the same sort of protection in their implementing legislation currently pending in many legislatures around the globe”); (statement of Matt Gerson, Vice President for Congressional Affairs, Motion Picture Assn. of America) (similar). See also at 85 (statement of Xavier Becerra, House Judiciary Commit tee member) (“[R]etroactivity is probably the best way to ensure that some of our older American works, any thing from Motown, to ‘Star Trek,’ to ‘The Hardy Boys’ get the protection in some of these emerging foreign markets. It is important to ensure that countries no longer use our U. S. law as an excuse for not extending retroactive copy right protections to some of our own works”). But see at 272–279 (statement of Larry Urbanski, Chairman of the Fairness in Copyright Coalition and President of 22 GOLAN v. HOLDER BREYER, J., dissenting Moviecraft Inc.) (testifying against restoration on grounds similar to those set at 10–13). This argument, whatever its intrinsic merits, is an ar gument that directly concerns a private benefit: how to obtain more money from the sales of existing products. It is not an argument ab a public benefit, such as how to promote or to protect the creative process. Third, the majority points that the statute “gives [authors] nothing more than the benefit of their labors during whatever time remains before the normal copyright term expires.” Ante, at 30. But insofar as it suggests that copyright should in general help authors obtain greater monetary rewards than needed to elicit new works, it rests upon primarily European, but not American, copyright concepts. See at 5–. Fourth, the majority argues that this statutory provi sion is necessary to fulfill our Berne Convention obliga tions. Ante, at 4–8. The Treaty, in Article 18, says that the “Convention shall apply to all works which, at the moment of its coming into force [i.e., 1989 in the case of the United States] have not yet fallen into the public domain in the country of origin through the expiry of the term of protection.” Berne Convention for the Protection of Literary and Artistic Works, Art. 18(1), Sept. 9, 188, as revised at Stockholm on July 14, 197, 828 U. N. T. S. 221, 251. The majority and Government say that this means we must protect the foreign works at issue here. And since the Berne Convention, taken as a whole, provides incentives for the creation of new works, I am willing to speculate, for argument’s sake, that the statute might indirectly encourage production of new works by making the United States’ place in the international copyright regime more secure. Still, I cannot find this argument sufficient to save the statute. For one thing, this is a dilemma of the Govern ment’s own making. The United States obtained the Cite as: 55 U. S. (2012) 23 BREYER, J., dissenting benefits of Berne for many years despite its failure to enact a statute implementing Article 18. But in 1994, the United States and other nations signed the Agreement on Trade-Related Aspects of Intellectual Property Rights, which enabled signatories to use World Trade Organiza tion dispute resolution mechanisms to complain ab other members’ Berne Convention violations. And at that time the Government, although it successfully secured reservations protecting other special features of American copyright law, made no effort to secure a reservation permitting the United States to keep some or all restored works in the American public domain. Indeed, it made no effort to do so despite the fact that Article 18 explicitly authorizes countries to negotiate exceptions to the Arti cle’s retroactivity principle. See Art. 18(3), (“The application of [the retroactivity] principle shall be subject to any provisions contained in special conventions to that effect existing or to be concluded between countries of the Union” ); Gervais, Golan v. Holder: A Look at the Constraints Imposed by the Berne Conven tion, 4 Vand. L. Rev. En Banc 147, 151–152 (2011); Gard, 4 Vand. L. Rev. En Banc, at 20. For another thing, the Convention does not require Congress to enact a statute that causes so much damage to public domain material. Article 18(3) also states that “the respective countries shall determine, each in so far as it is concerned, the conditions of application of this princi- ple.” 18 U. N. T. S., at 251 Congress could have alleviated many of the costs that the statute imposes by, for example, creating forms of compulsory licensing, requiring “restored copyright” holders to provide necessary administrative information as a condition of protection, or insisting upon “reasonable royalties.” Cf. S. 2913, 110th Cong., 2d Sess. (2008) (legislation that would have limited judicial remedies against users of orphan works); H. R. 5889, 110th Cong., 2d Sess. (2008) 24 GOLAN v. HOLDER BREYER, J., dissenting (House version of same); American Society of Compos- ers, Authors and Publishers, http://www.ascap.com/ licensing/termsdefined.aspx (society of music copyright owners offering blanket licenses that give users the unlim ited right to perform any of its members’ songs for a fixed fee, thus reducing negotiation and enforcement costs). To say this is not to criticize the Convention or our joining it. Rather, it is to argue that the other branches of Government should have tried to follow the Convention and in particular its provisions offering compliance flexi bility. The fact that the statute has significant First Amendment costs is relevant in this respect, for that Amendment ordinarily requires courts to evaluate less restrictive, alternative possibilities. Doing so here, reveals that neither Congress nor the Executive took advantage of less-restrictive methods of compliance that the Convention itself provides. And that fact means that the Convention cannot provide the statute with a constitutionally suffi cient justification that is otherwise lacking. III The fact that, by withdrawing material from the public domain, the statute inhibits an important preexisting flow of information is sufficient, when combined with the other features of the statute that I have discussed, to convince me that the Copyright Clause, interpreted in the light of the First Amendment, does not authorize Congress to enact this statute. I respectfully dissent from the Court’s contrary conclusion	2,069
Justice Thomas	majority	false	National Private Truck Council, Inc. v. Oklahoma Tax Comm'n	1995-06-19	null	https://www.courtlistener.com/opinion/117961/national-private-truck-council-inc-v-oklahoma-tax-commn/	https://www.courtlistener.com/api/rest/v3/clusters/117961/	1,995	1994-084	1	9	0	In the Oklahoma state courts, petitioners successfully challenged certain Oklahoma taxes as violating the "dormant" Commerce Clause. Although the Oklahoma Supreme Court ordered respondents to award refunds pursuant to 584 state law, it also held that petitioners were not entitled to declaratory or injunctive relief under Rev. Stat. § 1979, 42 U.S. C. § 1983, and, accordingly, that they could not obtain attorney's fees under 42 U.S. C. § 1988(b) (1988 ed., Supp. V). Petitioners argue that this holding violates the Supremacy Clause, U. S. Const., Art. VI, cl. 2. We affirm. I In 1983, Oklahoma imposed third-structure taxes against motor carriers with vehicles registered in any of 25 States.[1] It did so in order to retaliate against those States that had imposed discriminatory taxes against trucks registered in Oklahoma. In December 1984, petitioners filed a class action in an Oklahoma trial court, arguing that the taxes violated the dormant Commerce Clause and the Privileges and Immunities Clause of Art. IV, § 2, cl. 1. Pursuant to state law and § 1983, petitioners sought declaratory and injunctive relief as well as refunds of taxes paid. In addition, they sought attorney's fees under both state law and § 1988.[2] 585 The trial court upheld the constitutionality of the taxes, but the Oklahoma Supreme Court reversed and held that the taxes were invalid under our dormant Commerce Clause jurisprudence. Private Truck Council v. Oklahoma Tax Comm'n, 806 P.2d 598 (1990). The court awarded refunds under state law, but declined to award relief under § 1983 and declined to award attorney's fees under § 1988. In so ruling, it relied on Consolidated Freightways Corp. v. Kassel, 730 F.2d 1139 (CA8), cert. denied, 469 U.S. 834 (1984), which held that § 1983 may not be used to secure remedies for dormant Commerce Clause violations. After the Oklahoma Supreme Court's decision, we held that one of the "rights, privileges or immunities" protected by § 1983 was the right to be free from state action that violates the dormant Commerce Clause. See Dennis v. Higgins, 498 U.S. 439 (1991). Accordingly, we granted the taxpayers' petition for certiorari, vacated the judgment, and remanded the case for further consideration in light of Dennis. 501 U.S. 1247 (1991). On remand, the Oklahoma Supreme Court once again held that petitioners were not entitled to relief under § 1983. 879 P.2d 137 (1994). The court noted that because adequate remedies existed under state law, the Tax Injunction Act, 28 U.S. C. § 1341, would have precluded petitioners from seeking an injunction in federal court. 879 P.2d, at 140-141. Although the Tax Injunction Act does not apply in state courts, the Oklahoma Supreme Court relied upon the principle of "intrastate uniformity" to conclude that a state court need not grant injunctive or declaratory relief under § 1983 when such remedies would not be available in federal court. Id., at 141 (quoting Felder v. Casey, 487 U.S. 131, 153 (1988)). We granted certiorari to resolve a conflict among the state courts as to whether, in tax cases, state courts must provide 586 relief under § 1983 when adequate remedies exist under state law.[3] II We have long recognized that principles of federalism and comity generally counsel that courts should adopt a hands-off approach with respect to state tax administration. Immediately prior to the enactment of § 1983, the Court articulated the reasons behind the reluctance to interfere: "It is upon taxation that the several States chiefly rely to obtain the means to carry on their respective governments, and it is of the utmost importance to all of them that the modes adopted to enforce the taxes levied should be interfered with as little as possible." Dows v. Chicago, 11 Wall. 108, 110 (1871). Since the passage of § 1983, Congress and this Court repeatedly have shown an aversion to federal interference with state tax administration. The passage of the Tax Injunction Act in 1937 is one manifestation of this aversion. See 28 U.S. C. § 1341 (prohibiting federal courts from enjoining the collection of any state tax "where a plain, speedy and efficient remedy may be had in the courts of such State"). We subsequently relied upon the Act's spirit to extend the prohibition from injunctions to declaratory judgments regarding the constitutionality of state taxes. See Great Lakes Dredge & Dock Co. v. Huffman, 319 U.S. 293 (1943). Later, we held that the Tax Injunction Act itself precluded district courts from awarding such declaratory judgments. See Cal- 587 ifornia v. Grace Brethren Church, 457 U.S. 393, 407-411 (1982). The reluctance to interfere with state tax collection continued in McKesson Corp. v. Division of Alcoholic Beverages and Tobacco, Fla. Dept. of Business Regulation, 496 U.S. 18 (1990), in which we confirmed that the States are afforded great flexibility in satisfying the requirements of due process in the field of taxation. As long as state law provides a "`clear and certain remedy,' " id., at 51 (quoting Atchison, T. & S. F. R. Co. v. O'Connor, 223 U.S. 280, 285 (1912)), the States may determine whether to provide predeprivation process (e. g., an injunction) or instead to afford postdeprivation relief (e. g., a refund), 496 U.S., at 36-37. See also Harper v. Virginia Dept. of Taxation, 509 U.S. 86, 100-102 (1993). Of particular relevance to this case, Fair Assessment in Real Estate Assn., Inc. v. McNary, 454 U.S. 100, 116 (1981), held that because of principles of comity and federalism, Congress never authorized federal courts to entertain damages actions under § 1983 against state taxes when state law furnishes an adequate legal remedy. Seeking to overcome the longstanding federal reluctance to interfere with state taxation, petitioners invoke the Supremacy Clause and the straightforward proposition that it requires state courts to enforce federal law, here §§ 1983 and 1988. When they have jurisdiction, state courts have been compelled to provide federal remedies, notwithstanding the existence of less intrusive state-law remedies. See, e. g., Monroe v. Pape, 365 U.S. 167, 183 (1961). Accordingly, petitioners argue that we should require the Oklahoma Supreme Court to award equitable and declaratory relief under § 1983 and attorney's fees under § 1988. For purposes of this case, we will assume without deciding that state courts generally must hear § 1983 suits.[4] But this 588 does not necessarily mean that, having found a violation of federal law, state courts must award declaratory and injunctive relief under § 1983 in tax cases. Though federal courts are obliged to hear § 1983 claims, it is clear that they may not award damages or declaratory or injunctive relief in state tax cases when an adequate state remedy exists. See Fair Assessment, supra, at 116; Great Lakes Dredge & Dock Co. v. Huffman, supra, at 293; Matthews v. Rodgers, 284 U.S. 521, 525 (1932); 28 U.S. C. § 1341. As we explain more fully below, the background presumption that federal law generally will not interfere with administration of state taxes leads us to conclude that Congress did not authorize injunctive or declaratory relief under § 1983 in state tax cases when there is an adequate remedy at law.[5] III Petitioners correctly point out that the Tax Injunction Act does not prohibit state courts from entertaining § 1983 suits that seek to enjoin the collection of state taxes. Nor can a desire for "intrastate uniformity" permit state courts to refuse to award relief merely because a federal court could not grant such relief. As petitioners note, it was not until 1875 that Congress provided any kind of general federal-question jurisdiction to the lower federal courts. See Palmore v. United States, 411 U.S. 389, 401 (1973). "Until that time, the state courts provided the only forum for vindicating many important federal claims." Ibid. Because of the Supremacy Clause, state courts could not have refused to hear cases arising under federal law merely to ensure "uniformity" 589 between state and federal courts located within a particular state. In determining whether Congress has authorized state courts to issue injunctive and declaratory relief in state tax cases, we must interpret § 1983 in light of the strong background principle against federal interference with state taxation. Given this principle, we hold that § 1983 does not call for either federal or state courts to award injunctive and declaratory relief in state tax cases when an adequate legal remedy exists. Petitioners do not dispute that Oklahoma has offered an adequate remedy in the form of refunds. Under these circumstances, the Oklahoma courts' denial of relief under § 1983 was consistent with the long line of precedent underscoring the federal reluctance to interfere with state taxation. Our cases since Dows have uniformly concluded that federal courts cannot enjoin the collection of state taxes when a remedy at law is available. See, e. g., Matthews v. Rodgers, supra, at 525 (a "scrupulous regard for the rightful independence of state governments . . . and a proper reluctance to interfere by injunction with their fiscal operations, require that [injunctive] relief should be denied in every case where the asserted federal right may be preserved without it"); Singer Sewing Machine Co. of N. J. v. Benedict, 229 U.S. 481, 485 (1913); Boise Artesian Hot & Cold Water Co. v. Boise City, 213 U.S. 276, 282 (1909). Until Fair Assessment, one could have construed these cases as concerning only the equitable powers of the federal courts. See 454 U.S., at 108-111. In Fair Assessment, however, the principle of noninterference with state taxation led us to construe § 1983 narrowly. We held that § 1983 does not permit federal courts to award damages in state tax cases when state law provides an adequate remedy. See id., at 116. Although there was much discussion of the limitations on equity power, that discussion was useful only insofar as it provided a background against which § 1983 must be interpreted. Indeed, 590 because Fair Assessment considered whether damages were available under § 1983, the principle of equitable restraint that we discussed could have no direct application in that case. In concluding that Congress did not authorize damages actions in state tax cases brought in federal court, we found no evidence that Congress intended § 1983 to overturn the principle of federalism invoked in Dows and subsequently followed by the courts. Construing § 1983, we held that the case was "controlled by principles articulated even before enactment of § 1983 and followed in later decisions." Id., at 115-116. Just as Fair Assessment relied upon a background principle in interpreting § 1983 to preclude damages actions in tax cases brought in federal court, so we rely on the same principle in interpreting § 1983 to provide no basis for courts to award injunctive relief when an adequate legal remedy exists. Our interpretation is supported not only by the background principle of federal noninterference discussed in Fair Assessment, but also by the principles of equitable restraint discussed at length in that case. See id., at 107-109. Whether a suit is brought in federal or state court, Congress simply did not authorize the disruption of state tax administration in this way. To be sure, the Tax Injunction Act reflects the congressional concern with federal court interference with state taxation, see 28 U.S. C. § 1341, and there is no similar statute divesting state courts of the authority to enter an injunction under federal law when an adequate legal remedy exists. But this silence is irrelevant here, because we do not understand § 1983 to call for courts (whether federal or state) to enjoin the collection of state taxes when an adequate remedy is available under state law. Given the strong background presumption against interference with state taxation, the Tax Injunction Act may be best understood as but a partial codification of the federal reluctance to interfere with state taxation. See Fair Assessment, supra, at 110 ("[T]he principle 591 of comity which predated the Act [§ 1341] was not restricted by its passage"). After all, an injunction issued by a state court pursuant to § 1983 is just as disruptive as one entered by a federal court. The availability of an adequate legal remedy renders a declaratory judgment unwarranted as well. In Great Lakes, we observed that "considerations which have led federal courts of equity to refuse to enjoin the collection of state taxes . . . require a like restraint in the use of the declaratory judgment procedure." 319 U.S., at 299. The declaratory judgment procedure "may in every practical sense operate to suspend collection of the state taxes until the litigation is ended," ibid., and thus must be treated as being no less potentially disruptive than an injunction. See also Grace Brethren Church, 457 U. S., at 408 ("[T]here is little practical difference between injunctive and declaratory relief"). Cf. Samuels v. Mackell, 401 U.S. 66 (1971) (holding that prohibition against enjoining pending state criminal proceedings applies to granting of declaratory relief). Declaratory relief in state tax cases might throw tax administration "into disarray, and taxpayers might escape the ordinary procedural requirements imposed by state law." Perez v. Ledesma, 401 U.S. 82, 128, n. 17 (1971) (Brennan, J., concurring in part and dissenting in part). We simply do not read § 1983 to provide for injunctive or declaratory relief against a state tax, either in federal or state court, when an adequate legal remedy exists.[6] *592 Of course, nothing we say prevents a State from empowering its own courts to issue injunctions and declaratory judgments even when a legal remedy exists. Absent a valid federal prohibition, state courts are free to issue injunctions and declaratory judgments under state law. When a litigant seeks declaratory or injunctive relief against a state tax pursuant to § 1983, however, state courts, like their federal counterparts, must refrain from granting federal relief under § 1983 when there is an adequate legal remedy. Because petitioners had an adequate legal remedy, the Oklahoma courts could not have awarded either declaratory or injunctive relief against the state taxes under § 1983. It follows that when no relief can be awarded pursuant to § 1983, no attorney's fees can be awarded under § 1988. Accordingly, the judgment of the Oklahoma Supreme Court is Affirmed.	In the Oklahoma state courts, petitioners successfully challenged certain Oklahoma taxes as violating the "dormant" Commerce Clause. Although the Oklahoma Supreme Court ordered respondents to award refunds pursuant to 584 state law, it also held that petitioners were not entitled to declaratory or injunctive relief under Rev. Stat. 1979, 42 U.S. C. 1983, and, accordingly, that they could not obtain attorney's fees under 42 U.S. C. 1988(b) (1988 ed., Supp. V). Petitioners argue that this holding violates the Supremacy Clause, U. S. Const., Art. VI, cl. 2. We affirm. I In 1983, Oklahoma imposed third-structure taxes against motor carriers with vehicles registered in any of 25 States.[1] It did so in order to retaliate against those States that had imposed discriminatory taxes against trucks registered in Oklahoma. In December 1984, petitioners filed a class action in an Oklahoma trial court, arguing that the taxes violated the dormant Commerce Clause and the Privileges and Immunities Clause of Art. IV, 2, cl. 1. Pursuant to state law and 1983, petitioners sought declaratory and injunctive relief as well as refunds of taxes paid. In addition, they sought attorney's fees under both state law and 1988.[2] 585 The trial court upheld the constitutionality of the taxes, but the Oklahoma Supreme Court reversed and held that the taxes were invalid under our dormant Commerce Clause jurisprudence. Private Truck The court awarded refunds under state law, but declined to award relief under 1983 and declined to award attorney's fees under 1988. In so ruling, it relied on Consolidated Freightways (CA8), cert. denied, which held that 1983 may not be used to secure remedies for dormant Commerce Clause violations. After the Oklahoma Supreme Court's decision, we held that one of the "rights, privileges or immunities" protected by 1983 was the right to be free from state action that violates the dormant Commerce Clause. See Accordingly, we granted the taxpayers' petition for certiorari, vacated the judgment, and remanded the case for further consideration in light of Dennis. On remand, the Oklahoma Supreme Court once again held that petitioners were not entitled to relief under 1983. The court noted that because adequate remedies existed under state law, the Tax Injunction Act, 28 U.S. C. 1341, would have precluded petitioners from seeking an injunction in federal -141. Although the Tax Injunction Act does not apply in state courts, the Oklahoma Supreme Court relied upon the principle of "intrastate uniformity" to conclude that a state court need not grant injunctive or declaratory relief under 1983 when such remedies would not be available in federal ). We granted certiorari to resolve a conflict among the state courts as to whether, in tax cases, state courts must provide 586 relief under 1983 when adequate remedies exist under state law.[3] II We have long recognized that principles of federalism and comity generally counsel that courts should adopt a hands-off approach with respect to state tax administration. Immediately prior to the enactment of 1983, the Court articulated the reasons behind the reluctance to interfere: "It is upon taxation that the several States chiefly rely to obtain the means to carry on their respective governments, and it is of the utmost importance to all of them that the modes adopted to enforce the taxes levied should be interfered with as little as possible." Since the passage of 1983, Congress and this Court repeatedly have shown an aversion to federal interference with state tax administration. The passage of the Tax Injunction Act in 1937 is one manifestation of this aversion. See 28 U.S. C. 1341 (prohibiting federal courts from enjoining the collection of any state tax "where a plain, speedy and efficient remedy may be had in the courts of such State"). We subsequently relied upon the Act's spirit to extend the prohibition from injunctions to declaratory judgments regarding the constitutionality of state taxes. See Great Lakes Dredge & Dock Later, we held that the Tax Injunction Act itself precluded district courts from awarding such declaratory judgments. See Cal- 587 The reluctance to interfere with state tax collection continued in McKesson in which we confirmed that the States are afforded great flexibility in satisfying the requirements of due process in the field of taxation. As long as state law provides a "`clear and certain remedy,' " ), the States may determine whether to provide predeprivation process (e. g., an injunction) or instead to afford postdeprivation relief (e. g., a refund), -37. See also Of particular relevance to this case, Fair in Real Estate Assn., held that because of principles of comity and federalism, Congress never authorized federal courts to entertain damages actions under 1983 against state taxes when state law furnishes an adequate legal remedy. Seeking to overcome the longstanding federal reluctance to interfere with state taxation, petitioners invoke the Supremacy Clause and the straightforward proposition that it requires state courts to enforce federal law, here 1983 and 1988. When they have jurisdiction, state courts have been compelled to provide federal remedies, notwithstanding the existence of less intrusive state-law remedies. See, e. g., Accordingly, petitioners argue that we should require the Oklahoma Supreme Court to award equitable and declaratory relief under 1983 and attorney's fees under 1988. For purposes of this case, we will assume without deciding that state courts generally must hear 1983 suits.[4] But this 588 does not necessarily mean that, having found a violation of federal law, state courts must award declaratory and injunctive relief under 1983 in tax cases. Though federal courts are obliged to hear 1983 claims, it is clear that they may not award damages or declaratory or injunctive relief in state tax cases when an adequate state remedy exists. See Fair at ; Great Lakes Dredge & Dock ; ; 28 U.S. C. 1341. As we explain more fully below, the background presumption that federal law generally will not interfere with administration of state taxes leads us to conclude that Congress did not authorize injunctive or declaratory relief under 1983 in state tax cases when there is an adequate remedy at law.[5] III Petitioners correctly point out that the Tax Injunction Act does not prohibit state courts from entertaining 1983 suits that seek to enjoin the collection of state taxes. Nor can a desire for "intrastate uniformity" permit state courts to refuse to award relief merely because a federal court could not grant such relief. As petitioners note, it was not until 1875 that Congress provided any kind of general federal-question jurisdiction to the lower federal courts. See "Until that time, the state courts provided the only forum for vindicating many important federal claims." Because of the Supremacy Clause, state courts could not have refused to hear cases arising under federal law merely to ensure "uniformity" 589 between state and federal courts located within a particular state. In determining whether Congress has authorized state courts to issue injunctive and declaratory relief in state tax cases, we must interpret 1983 in light of the strong background principle against federal interference with state taxation. Given this principle, we hold that 1983 does not call for either federal or state courts to award injunctive and declaratory relief in state tax cases when an adequate legal remedy exists. Petitioners do not dispute that Oklahoma has offered an adequate remedy in the form of refunds. Under these circumstances, the Oklahoma courts' denial of relief under 1983 was consistent with the long line of precedent underscoring the federal reluctance to interfere with state taxation. Our cases since Dows have uniformly concluded that federal courts cannot enjoin the collection of state taxes when a remedy at law is available. See, e. g., at (a "scrupulous regard for the rightful independence of state governments and a proper reluctance to interfere by injunction with their fiscal operations, require that [injunctive] relief should be denied in every case where the asserted federal right may be preserved without it"); Singer Sewing Machine Co. of N. ; Boise Artesian Hot & Cold Water Until Fair one could have construed these cases as concerning only the equitable powers of the federal courts. See -111. In Fair however, the principle of noninterference with state taxation led us to construe 1983 narrowly. We held that 1983 does not permit federal courts to award damages in state tax cases when state law provides an adequate remedy. See at Although there was much discussion of the limitations on equity power, that discussion was useful only insofar as it provided a background against which 1983 must be interpreted. Indeed, 590 because Fair considered whether damages were available under 1983, the principle of equitable restraint that we discussed could have no direct application in that case. In concluding that Congress did not authorize damages actions in state tax cases brought in federal court, we found no evidence that Congress intended 1983 to overturn the principle of federalism invoked in Dows and subsequently followed by the courts. Construing 1983, we held that the case was "controlled by principles articulated even before enactment of 1983 and followed in later decisions." at 115-. Just as Fair relied upon a background principle in interpreting 1983 to preclude damages actions in tax cases brought in federal court, so we rely on the same principle in interpreting 1983 to provide no basis for courts to award injunctive relief when an adequate legal remedy exists. Our interpretation is supported not only by the background principle of federal noninterference discussed in Fair but also by the principles of equitable restraint discussed at length in that case. See Whether a suit is brought in federal or state court, Congress simply did not authorize the disruption of state tax administration in this way. To be sure, the Tax Injunction Act reflects the congressional concern with federal court interference with state taxation, see 28 U.S. C. 1341, and there is no similar statute divesting state courts of the authority to enter an injunction under federal law when an adequate legal remedy exists. But this silence is irrelevant here, because we do not understand 1983 to call for courts (whether federal or state) to enjoin the collection of state taxes when an adequate remedy is available under state law. Given the strong background presumption against interference with state taxation, the Tax Injunction Act may be best understood as but a partial codification of the federal reluctance to interfere with state taxation. See Fair at ("[T]he principle 591 of comity which predated the Act [ 1341] was not restricted by its passage"). After all, an injunction issued by a state court pursuant to 1983 is just as disruptive as one entered by a federal The availability of an adequate legal remedy renders a declaratory judgment unwarranted as well. In Great Lakes, we observed that "considerations which have led federal courts of equity to refuse to enjoin the collection of state taxes require a like restraint in the use of the declaratory judgment procedure." The declaratory judgment procedure "may in every practical sense operate to suspend collection of the state taxes until the litigation is ended," ib and thus must be treated as being no less potentially disruptive than an injunction. See also Grace Brethren Cf. U.S. 66 Declaratory relief in state tax cases might throw tax administration "into disarray, and taxpayers might escape the ordinary procedural requirements imposed by state law." U.S. 82, We simply do not read 1983 to provide for injunctive or declaratory relief against a state tax, either in federal or state court, when an adequate legal remedy exists.[6] *592 Of course, nothing we say prevents a State from empowering its own courts to issue injunctions and declaratory judgments even when a legal remedy exists. Absent a valid federal prohibition, state courts are free to issue injunctions and declaratory judgments under state law. When a litigant seeks declaratory or injunctive relief against a state tax pursuant to 1983, however, state courts, like their federal counterparts, must refrain from granting federal relief under 1983 when there is an adequate legal remedy. Because petitioners had an adequate legal remedy, the Oklahoma courts could not have awarded either declaratory or injunctive relief against the state taxes under 1983. It follows that when no relief can be awarded pursuant to 1983, no attorney's fees can be awarded under 1988. Accordingly, the judgment of the Oklahoma Supreme Court is Affirmed.	2,070
Justice Kennedy	concurring	false	National Private Truck Council, Inc. v. Oklahoma Tax Comm'n	1995-06-19	null	https://www.courtlistener.com/opinion/117961/national-private-truck-council-inc-v-oklahoma-tax-commn/	https://www.courtlistener.com/api/rest/v3/clusters/117961/	1,995	1994-084	1	9	0	One reason for difficulty in adapting 42 U.S. C. § 1983 to an action attacking a state tax is, in my view, that § 1983 was not intended for claims based on the Commerce Clause at all. See Dennis v. Higgins, 498 U.S. 439, 451 (1991) (Kennedy, J., dissenting) (violations of the Commerce Clause do not give rise to a cause of action under § 1983); see also Golden State Transit Corp. v. Los Angeles, 493 U.S. 103, 117 (1989) (Kennedy, J., dissenting) (a federal statute's pre-emptive effect does not secure a right within the meaning of § 1983). The Court has not adopted that position, however, and on that premise I agree with today's opinion and join it in full.	One reason for difficulty in adapting 42 U.S. C. 1983 to an action attacking a state tax is, in my view, that 1983 was not intended for claims based on the Commerce Clause at all. See (violations of the Commerce Clause do not give rise to a cause of action under 1983); see also Golden State Transit (a federal statute's pre-emptive effect does not secure a right within the meaning of 1983). The Court has not adopted that position, however, and on that premise I agree with today's opinion and join it in full.	2,071
Justice Scalia	majority	false	Davis v. Washington	2006-06-19	null	https://www.courtlistener.com/opinion/145641/davis-v-washington/	https://www.courtlistener.com/api/rest/v3/clusters/145641/	2,006	2005-070	1	9	0	These cases require us to determine when statements made to law enforcement personnel during a 911 call or at a crime scene are "testimonial" and thus subject to the requirements of the Sixth Amendment's Confrontation Clause. I A The relevant statements in Davis v. Washington, No. 05-5224, were made to a 911 emergency operator on February 1, 2001. When the operator answered the initial call, the connection terminated before anyone spoke. She reversed the call, and Michelle McCottry answered. In the ensuing conversation, the operator ascertained that McCottry was involved in a domestic disturbance with her former boyfriend Adrian Davis, the petitioner in this case: "911 Operator: Hello. "Complainant: Hello. "911 Operator: What's going on? "Complainant: He's here jumpin' on me again. "911 Operator: Okay. Listen to me carefully. Are you in a house or an apartment? "Complainant: I'm in a house. "911 Operator: Are there any weapons? "Complainant: No. He's usin' his fists. "911 Operator: Okay. Has he been drinking? "Complainant: No. "911 Operator: Okay, sweetie. I've got help started. Stay on the line with me, okay? "Complainant: I'm on the line. 818 "911 Operator: Listen to me carefully. Do you know his last name? "Complainant: It's Davis. "911 Operator: Davis? Okay, what's his first name? "Complainant: Adran "911 Operator: What is it? "Complainant: Adrian. "911 Operator: Adrian? "Complainant: Yeah. "911 Operator: Okay. What's his middle initial? "Complainant: Martell. He's runnin' now." App. in No. 05-5224, pp. 8-9. As the conversation continued, the operator learned that Davis had "just r[un] out the door" after hitting McCottry, and that he was leaving in a car with someone else. Id., at 9-10. McCottry started talking, but the operator cut her off, saying, "Stop talking and answer my questions." Id., at 10. She then gathered more information about Davis (including his birthday), and learned that Davis had told McCottry that his purpose in coming to the house was "to get his stuff," since McCottry was moving. Id., at 11-12. McCottry described the context of the assault, id., at 12, after which the operator told her that the police were on their way. "They're gonna check the area for him first," the operator said, "and then they're gonna come talk to you." Id., at 12-13. The police arrived within four minutes of the 911 call and observed McCottry's shaken state, the "fresh injuries on her forearm and her face," and her "frantic efforts to gather her belongings and her children so that they could leave the residence." 154 Wash. 2d 291, 296, 111 P.3d 844, 847 (2005) (en banc). The State charged Davis with felony violation of a domestic no-contact order. "The State's only witnesses were the two police officers who responded to the 911 call. Both officers testified that McCottry exhibited injuries that appeared 819 to be recent, but neither officer could testify as to the cause of the injuries." Ibid. McCottry presumably could have testified as to whether Davis was her assailant, but she did not appear. Over Davis's objection, based on the Confrontation Clause of the Sixth Amendment, the trial court admitted the recording of her exchange with the 911 operator, and the jury convicted him. The Washington Court of Appeals affirmed, 116 Wash. App. 81, 64 P.3d 661 (2003). The Supreme Court of Washington, with one dissenting justice, also affirmed, concluding that the portion of the 911 conversation in which McCottry identified Davis was not testimonial, and that if other portions of the conversation were testimonial, admitting them was harmless beyond a reasonable doubt. 154 Wash. 2d, at 305, 111 P.3d, at 851. We granted certiorari. 546 U.S. 975 (2005). B In Hammon v. Indiana, No. 05-5705, police responded late on the night of February 26, 2003, to a "reported domestic disturbance" at the home of Hershel and Amy Hammon. 829 N.E.2d 444, 446 (Ind. 2005). They found Amy alone on the front porch, appearing "`somewhat frightened,'" but she told them that "`nothing was the matter,'" id., at 446, 447. She gave them permission to enter the house, where an officer saw "a gas heating unit in the corner of the living room" that had "flames coming out of the . . . partial glass front. There were pieces of glass on the ground in front of it and there was flame emitting from the front of the heating unit." App. in No. 05-5705, p. 16. Hershel, meanwhile, was in the kitchen. He told the police "that he and his wife had `been in an argument' but `everything was fine now' and the argument `never became physical.'" 829 N.E.2d, at 447. By this point Amy had come back inside. One of the officers remained with Hershel; the other went to the living room to talk with Amy, and "again asked [her] what had occurred." Ibid.; App. in No. 05-5705, at 17, 32. Hershel made several attempts to 820 participate in Amy's conversation with the police, see id., at 32, but was rebuffed. The officer later testified that Hershel "became angry when I insisted that [he] stay separated from Mrs. Hammon so that we can investigate what had happened." Id., at 34. After hearing Amy's account, the officer "had her fill out and sign a battery affidavit." Id., at 18. Amy handwrote the following: "Broke our Furnace & shoved me down on the floor into the broken glass. Hit me in the chest and threw me down. Broke our lamps & phone. Tore up my van where I couldn't leave the house. Attacked my daughter." Id., at 2. The State charged Hershel with domestic battery and with violating his probation. Amy was subpoenaed, but she did not appear at his subsequent bench trial. The State called the officer who had questioned Amy, and asked him to recount what Amy told him and to authenticate the affidavit. Hershel's counsel repeatedly objected to the admission of this evidence. See id., at 11, 12, 13, 17, 19, 20, 21. At one point, after hearing the prosecutor defend the affidavit because it was made "under oath," defense counsel said, "That doesn't give us the opportunity to cross examine [the] person who allegedly drafted it. Makes me mad." Id., at 19. Nonetheless, the trial court admitted the affidavit as a "present sense impression," id., at 20, and Amy's statements as "excited utterances" that "are expressly permitted in these kinds of cases even if the declarant is not available to testify," id., at 40. The officer thus testified that Amy "informed me that she and Hershel had been in an argument. That he became irrate [sic] over the fact of their daughter going to a boyfriend's house. The argument became . . . physical after being verbal and she informed me that Mr. Hammon, during the verbal part of the argument was breaking things in the living room and I believe she stated he broke the phone, broke the lamp, broke the front of the heater. When it became physical he threw her down into the glass of the heater. . . . . . 821 "She informed me Mr. Hammon had pushed her onto the ground, had shoved her head into the broken glass of the heater and that he had punched her in the chest twice I believe." Id., at 17-18. The trial judge found Hershel guilty on both charges, id., at 40, and the Indiana Court of Appeals affirmed in relevant part, 809 N.E.2d 945 (2004). The Indiana Supreme Court also affirmed, concluding that Amy's statement was admissible for state-law purposes as an excited utterance, 829 N.E.2d, at 449; that "a `testimonial' statement is one given or taken in significant part for purposes of preserving it for potential future use in legal proceedings," where "the motivations of the questioner and declarant are the central concerns," id., at 456, 457; and that Amy's oral statement was not "testimonial" under these standards, id., at 458. It also concluded that, although the affidavit was testimonial and thus wrongly admitted, it was harmless beyond a reasonable doubt, largely because the trial was to the bench. Id., at 458-459. We granted certiorari. 546 U.S. 975 (2005). II The Confrontation Clause of the Sixth Amendment provides: "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." In Crawford v. Washington, 541 U.S. 36, 53-54 (2004), we held that this provision bars "admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination." A critical portion of this holding, and the portion central to resolution of the two cases now before us, is the phrase "testimonial statements." Only statements of this sort cause the declarant to be a "witness" within the meaning of the Confrontation Clause. See id., at 51. It is the testimonial character of the statement that separates it from other hearsay that, while subject to traditional limitations upon hearsay evidence, is not subject to the Confrontation Clause. 822 Our opinion in Crawford set forth "[v]arious formulations" of the core class of "`testimonial'" statements, ibid., but found it unnecessary to endorse any of them, because "some statements qualify under any definition," id., at 52. Among those, we said, were "[s]tatements taken by police officers in the course of interrogations," ibid.; see also id., at 53. The questioning that generated the deponent's statement in Crawfordwhich was made and recorded while she was in police custody, after having been given Miranda warnings as a possible suspect herself"qualifies under any conceivable definition" of an "`interrogation,'" 541 U.S., at 53, n. 4. We therefore did not define that term, except to say that "[w]e use [it] . . . in its colloquial, rather than any technical legal, sense," and that "one can imagine various definitions . . ., and we need not select among them in this case." Ibid. The character of the statements in the present cases is not as clear, and these cases require us to determine more precisely which police interrogations produce testimony. Without attempting to produce an exhaustive classification of all conceivable statementsor even all conceivable statements in response to police interrogationas either testimonial or nontestimonial, it suffices to decide the present cases to hold as follows: Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.[1] 823 III A In Crawford, it sufficed for resolution of the case before us to determine that "even if the Sixth Amendment is not solely concerned with testimonial hearsay, that is its primary object, and interrogations by law enforcement officers fall squarely within that class." Id., at 53. Moreover, as we have just described, the facts of that case spared us the need to define what we meant by "interrogations." The Davis case today does not permit us this luxury of indecision. The inquiries of a police operator in the course of a 911 call[2] are an interrogation in one sense, but not in a sense that "qualifies under any conceivable definition." We must decide, therefore, whether the Confrontation Clause applies only to testimonial hearsay; and, if so, whether the recording of a 911 call qualifies. The answer to the first question was suggested in Crawford, even if not explicitly held: "The text of the Confrontation Clause reflects this focus [on testimonial hearsay]. It applies to `witnesses' against the accusedin other words, those who `bear testimony.' 1 N. Webster, An American Dictionary of 824 the English Language (1828). `Testimony,' in turn, is typically `a solemn declaration or affirmation made for the purpose of establishing or proving some fact.' Ibid. An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not." 541 U.S., at 51. A limitation so clearly reflected in the text of the constitutional provision must fairly be said to mark out not merely its "core," but its perimeter. We are not aware of any early American case invoking the Confrontation Clause or the common-law right to confrontation that did not clearly involve testimony as thus defined.[3] Well into the 20th century, our own Confrontation Clause jurisprudence was carefully applied only in the testimonial context. See, e. g., Reynolds v. United States, 98 U.S. 145, 825 158 (1879) (testimony at prior trial was subject to the Confrontation Clause, but petitioner had forfeited that right by procuring witness's absence); Mattox v. United States, 156 U.S. 237, 240-244 (1895) (prior trial testimony of deceased witnesses admitted because subject to cross-examination); Kirby v. United States, 174 U.S. 47, 55-56 (1899) (guilty pleas and jury conviction of others could not be admitted to show that property defendant received from them was stolen); Motes v. United States, 178 U.S. 458, 467, 470-471 (1900) (written deposition subject to cross-examination was not admissible because witness was available); Dowdell v. United States, 221 U.S. 325, 330-331 (1911) (facts regarding conduct of prior trial certified to by the judge, the clerk of court, and the official reporter did not relate to defendants' guilt or innocence and hence were not statements of "witnesses" under the Confrontation Clause). Even our later cases, conforming to the reasoning of Ohio v. Roberts, 448 U.S. 56 (1980),[4] never in practice dispensed with the Confrontation Clause requirements of unavailability and prior cross-examination in cases that involved testimonial hearsay, see Crawford, 541 U. S., at 57-59 (citing cases), with one arguable exception, see id., at 58, n. 8 (discussing White v. Illinois, 502 U.S. 346 (1992)). Where our cases did dispense with those requirementseven under the Roberts approachthe statements at issue were clearly nontestimonial. See, e. g., Bourjaily v. United States, 483 U.S. 171, 181-184 (1987) (statements made unwittingly to a Government informant); Dutton v. Evans, 400 U.S. 74, 87-89 (1970) (plurality opinion) (statements from one prisoner to another). Most of the American cases applying the Confrontation Clause or its state constitutional or common-law counter-parts 826 involved testimonial statements of the most formal sortsworn testimony in prior judicial proceedings or formal depositions under oathwhich invites the argument that the scope of the Clause is limited to that very formal category. But the English cases that were the progenitors of the Confrontation Clause did not limit the exclusionary rule to prior court testimony and formal depositions, see Crawford, supra, at 52, and n. 3. In any event, we do not think it conceivable that the protections of the Confrontation Clause can readily be evaded by having a note-taking policeman recite the unsworn hearsay testimony of the declarant, instead of having the declarant sign a deposition. Indeed, if there is one point for which no caseEnglish or early American, state or federalcan be cited, that is it. The question before us in Davis, then, is whether, objectively considered, the interrogation that took place in the course of the 911 call produced testimonial statements. When we said in Crawford, supra, at 53, that "interrogations by law enforcement officers fall squarely within [the] class" of testimonial hearsay, we had immediately in mind (for that was the case before us) interrogations solely directed at establishing the facts of a past crime, in order to identify (or provide evidence to convict) the perpetrator. The product of such interrogation, whether reduced to a writing signed by the declarant or embedded in the memory (and perhaps notes) of the interrogating officer, is testimonial. It is, in the terms of the 1828 American dictionary quoted in Crawford, "`[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.'" 541 U.S., at 51. (The solemnity of even an oral declaration of relevant past fact to an investigating officer is well enough established by the severe consequences that can attend a deliberate falsehood. See, e. g., United States v. Stewart, 433 F.3d 273, 288 (CA2 2006) (false statements made to federal investigators violate 18 U.S. C. § 1001); State v. Reed, 2005 WI 53, 827 ¶ 30, 280 Wis. 2d 68, 85, 695 N.W.2d 315, 323 (state criminal offense to "knowingly giv[e] false information to [an] officer with [the] intent to mislead the officer in the performance of his or her duty").) A 911 call, on the other hand, and at least the initial interrogation conducted in connection with a 911 call, is ordinarily not designed primarily to "establis[h] or prov[e]" some past fact, but to describe current circumstances requiring police assistance. The difference between the interrogation in Davis and the one in Crawford is apparent on the face of things. In Davis, McCottry was speaking about events as they were actually happening, rather than "describ[ing] past events," Lilly v. Virginia, 527 U.S. 116, 137 (1999) (plurality opinion). Sylvia Crawford's interrogation, on the other hand, took place hours after the events she described had occurred. Moreover, any reasonable listener would recognize that McCottry (unlike Sylvia Crawford) was facing an ongoing emergency. Although one might call 911 to provide a narrative report of a crime absent any imminent danger, McCottry's call was plainly a call for help against a bona fide physical threat. Third, the nature of what was asked and answered in Davis, again viewed objectively, was such that the elicited statements were necessary to be able to resolve the present emergency, rather than simply to learn (as in Crawford) what had happened in the past. That is true even of the operator's effort to establish the identity of the assailant, so that the dispatched officers might know whether they would be encountering a violent felon. See, e. g., Hiibel v. Sixth Judicial Dist. Court of Nev., Humboldt Cty., 542 U.S. 177, 186 (2004). And finally, the difference in the level of formality between the two interviews is striking. Crawford was responding calmly, at the station house, to a series of questions, with the officer-interrogator taping and making notes of her answers; McCottry's frantic answers were provided over the phone, in an environment that was not tranquil, or even (as far as any reasonable 911 operator could make out) safe. 828 We conclude from all this that the circumstances of McCottry's interrogation objectively indicate its primary purpose was to enable police assistance to meet an ongoing emergency. She simply was not acting as a witness; she was not testifying. What she said was not "a weaker substitute for live testimony" at trial, United States v. Inadi, 475 U.S. 387, 394 (1986), like Lord Cobham's statements in Raleigh's Case, 2 How. St. Tr. 1 (1603), or Jane Dingler's ex parte statements against her husband in King v. Dingler, 2 Leach 561, 168 Eng. Rep. 383 (1791), or Sylvia Crawford's statement in Crawford. In each of those cases, the ex parte actors and the evidentiary products of the ex parte communication aligned perfectly with their courtroom analogues. McCottry's emergency statement does not. No "witness" goes into court to proclaim an emergency and seek help. Davis seeks to cast McCottry in the unlikely role of a witness by pointing to English cases. None of them involves statements made during an ongoing emergency. In King v. Brasier, 1 Leach 199, 168 Eng. Rep. 202 (1779), for example, a young rape victim, "immediately on her coming home, told all the circumstances of the injury" to her mother. Id., at 200, 168 Eng. Rep., at 202. The case would be helpful to Davis if the relevant statement had been the girl's screams for aid as she was being chased by her assailant. But by the time the victim got home, her story was an account of past events. This is not to say that a conversation which begins as an interrogation to determine the need for emergency assistance cannot, as the Indiana Supreme Court put it, "evolve into testimonial statements," 829 N.E.2d, at 457, once that purpose has been achieved. In this case, for example, after the operator gained the information needed to address the exigency of the moment, the emergency appears to have ended (when Davis drove away from the premises). The operator then told McCottry to be quiet, and proceeded to pose a battery of questions. It could readily be maintained that, 829 from that point on, McCottry's statements were testimonial, not unlike the "structured police questioning" that occurred in Crawford, 541 U. S., at 53, n. 4. This presents no great problem. Just as, for Fifth Amendment purposes, "police officers can and will distinguish almost instinctively between questions necessary to secure their own safety or the safety of the public and questions designed solely to elicit testimonial evidence from a suspect," New York v. Quarles, 467 U.S. 649, 658-659 (1984), trial courts will recognize the point at which, for Sixth Amendment purposes, statements in response to interrogations become testimonial. Through in limine procedure, they should redact or exclude the portions of any statement that have become testimonial, as they do, for example, with unduly prejudicial portions of otherwise admissible evidence. Davis's jury did not hear the complete 911 call, although it may well have heard some testimonial portions. We were asked to classify only McCottry's early statements identifying Davis as her assailant, and we agree with the Washington Supreme Court that they were not testimonial. That court also concluded that, even if later parts of the call were testimonial, their admission was harmless beyond a reasonable doubt. Davis does not challenge that holding, and we therefore assume it to be correct. B Determining the testimonial or nontestimonial character of the statements that were the product of the interrogation in Hammon is a much easier task, since they were not much different from the statements we found to be testimonial in Crawford. It is entirely clear from the circumstances that the interrogation was part of an investigation into possibly criminal past conductas, indeed, the testifying officer expressly acknowledged, App. in No. 05-5705, at 25, 32, 34. There was no emergency in progress; the interrogating officer testified that he had heard no arguments or crashing and saw no one throw or break anything, id., at 25. When the 830 officers first arrived, Amy told them that things were fine, id., at 14, and there was no immediate threat to her person. When the officer questioned Amy for the second time, and elicited the challenged statements, he was not seeking to determine (as in Davis) "what is happening," but rather "what happened." Objectively viewed, the primary, if not indeed the sole, purpose of the interrogation was to investigate a possible crimewhich is, of course, precisely what the officer should have done. It is true that the Crawford interrogation was more formal. It followed a Miranda warning, was tape-recorded, and took place at the station house, see 541 U.S., at 53, n. 4. While these features certainly strengthened the statements' testimonial aspectmade it more objectively apparent, that is, that the purpose of the exercise was to nail down the truth about past criminal eventsnone was essential to the point. It was formal enough that Amy's interrogation was conducted in a separate room, away from her husband (who tried to intervene), with the officer receiving her replies for use in his "investigat[ion]." App. in No. 05-5705, at 34. What we called the "striking resemblance" of the Crawford statement to civil-law ex parte examinations, 541 U.S., at 52, is shared by Amy's statement here. Both declarants were actively separated from the defendantofficers forcibly prevented Hershel from participating in the interrogation. Both statements deliberately recounted, in response to police questioning, how potentially criminal past events began and progressed. And both took place some time after the events described were over. Such statements under official interrogation are an obvious substitute for live testimony, because they do precisely what a witness does on direct examination; they are inherently testimonial.[5] 831 Both Indiana and the United States as amicus curiae argue that this case should be resolved much like Davis. For the reasons we find the comparison to Crawford compelling, we find the comparison to Davis unpersuasive. The statements in Davis were taken when McCottry was alone, not only unprotected by police (as Amy Hammon was protected), but apparently in immediate danger from Davis. She was seeking aid, not telling a story about the past. McCottry's present-tense statements showed immediacy; 832 Amy's narrative of past events was delivered at some remove in time from the danger she described. And after Amy answered the officer's questions, he had her execute an affidavit, in order, he testified, "[t]o establish events that have occurred previously." App. in No. 05-5705, at 18. Although we necessarily reject the Indiana Supreme Court's implication that virtually any "initial inquiries" at the crime scene will not be testimonial, see 829 N.E.2d, at 453, 457, we do not hold the oppositethat no questions at the scene will yield nontestimonial answers. We have already observed of domestic disputes that "[o]fficers called to investigate . . . need to know whom they are dealing with in order to assess the situation, the threat to their own safety, and possible danger to the potential victim." Hiibel, 542 U. S., at 186. Such exigencies may often mean that "initial inquiries" produce nontestimonial statements. But in cases like this one, where Amy's statements were neither a cry for help nor the provision of information enabling officers immediately to end a threatening situation, the fact that they were given at an alleged crime scene and were "initial inquiries" is immaterial. Cf. Crawford, supra, at 52, n. 3.[6] IV Respondents in both cases, joined by a number of their amici, contend that the nature of the offenses charged in these two casesdomestic violencerequires greater flexibility in the use of testimonial evidence. This particular 833 type of crime is notoriously susceptible to intimidation or coercion of the victim to ensure that she does not testify at trial. When this occurs, the Confrontation Clause gives the criminal a windfall. We may not, however, vitiate constitutional guarantees when they have the effect of allowing the guilty to go free. Cf. Kyllo v. United States, 533 U.S. 27 (2001) (suppressing evidence from an illegal search). But when defendants seek to undermine the judicial process by procuring or coercing silence from witnesses and victims, the Sixth Amendment does not require courts to acquiesce. While defendants have no duty to assist the State in proving their guilt, they do have the duty to refrain from acting in ways that destroy the integrity of the criminal-trial system. We reiterate what we said in Crawford: that "the rule of forfeiture by wrongdoing . . . extinguishes confrontation claims on essentially equitable grounds." 541 U.S., at 62 (citing Reynolds, 98 U. S., at 158-159). That is, one who obtains the absence of a witness by wrongdoing forfeits the constitutional right to confrontation. We take no position on the standards necessary to demonstrate such forfeiture, but federal courts using Federal Rule of Evidence 804(b)(6), which codifies the forfeiture doctrine, have generally held the Government to the preponderance-of-the-evidence standard, see, e. g., United States v. Scott, 284 F.3d 758, 762 (CA7 2002). State courts tend to follow the same practice, see, e. g., Commonwealth v. Edwards, 444 Mass. 526, 542, 830 N.E.2d 158, 172 (2005). Moreover, if a hearing on forfeiture is required, Edwards, for instance, observed that "hearsay evidence, including the unavailable witness's out-of-court statements, may be considered." Id., at 545, 830 N.E.2d, at 174. The Roberts approach to the Confrontation Clause undoubtedly made recourse to this doctrine less necessary, because prosecutors could show the "reliability" of ex parte statements more easily than they could show the defendant's procurement of the witness's absence. 834 Crawford, in overruling Roberts, did not destroy the ability of courts to protect the integrity of their proceedings. We have determined that, absent a finding of forfeiture by wrongdoing, the Sixth Amendment operates to exclude Amy Hammon's affidavit. The Indiana courts may (if they are asked) determine on remand whether such a claim of forfeiture is properly raised and, if so, whether it is meritorious. * * We affirm the judgment of the Supreme Court of Washington in No. 05-5224. We reverse the judgment of the Supreme Court of Indiana in No. 05-5705, and remand the case to that court for proceedings not inconsistent with this opinion. It is so ordered. JUSTICE THOMAS, concurring in the judgment in part and dissenting in part. In Crawford v. Washington, 541 U.S. 36 (2004), we abandoned the general reliability inquiry we had long employed to judge the admissibility of hearsay evidence under the Confrontation Clause, describing that inquiry as "inherently, and therefore permanently, unpredictable." Id., at 68, n. 10 (emphasis in original). Today, a mere two years after the Court decided Crawford, it adopts an equally unpredictable test, under which district courts are charged with divining the "primary purpose" of police interrogations. Ante, at 822. Besides being difficult for courts to apply, this test characterizes as "testimonial," and therefore inadmissible, evidence that bears little resemblance to what we have recognized as the evidence targeted by the Confrontation Clause. Because neither of the cases before the Court today would implicate the Confrontation Clause under an appropriately targeted standard, I concur only in the judgment in Davis v. Washington, No. 05-5224, and dissent from the Court's resolution of Hammon v. Indiana, No. 05-5705. 835 I A The Confrontation Clause provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . . ." U. S. Const., Amdt. 6. We have recognized that the operative phrase in the Clause, "witnesses against him," could be interpreted narrowly, to reach only those witnesses who actually testify at trial, or more broadly, to reach many or all of those whose out-of-court statements are offered at trial. Crawford, supra, at 42-43; White v. Illinois, 502 U.S. 346, 359-363 (1992) (Thomas, J., concurring in part and concurring in judgment). Because the narrowest interpretation of the Clause would conflict with both the history giving rise to the adoption of the Clause and this Court's precedent, we have rejected such a reading. See Crawford, supra, at 50-51; White, supra, at 360 (opinion of Thomas, J.). Rejection of the narrowest view of the Clause does not, however, require the broadest application of the Clause to exclude otherwise admissible hearsay evidence. The history surrounding the right to confrontation supports the conclusion that it was developed to target particular practices that occurred under the English bail and committal statutes passed during the reign of Queen Mary, namely, the "civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused." Crawford, supra, at 43, 50; White, supra, at 361-362 (opinion of Thomas, J.); Mattox v. United States, 156 U.S. 237, 242 (1895). "The predominant purpose of the [Marian committal] statute was to institute systematic questioning of the accused and the witnesses." J. Langbein, Prosecuting Crime in the Renaissance 23 (1974) (emphasis added). The statute required an oral examination of the suspect and the accusers, transcription within two days of the examinations, and physical transmission to the judges hearing the case. 836 Id., at 10, 23. These examinations came to be used as evidence in some cases, in lieu of a personal appearance by the witness. Crawford, supra, at 43-44; 9 W. Holdsworth, A History of English Law 223-229 (1926). Many statements that would be inadmissible as a matter of hearsay law bear little resemblance to these evidentiary practices, which the Framers proposed the Confrontation Clause to prevent. See, e. g., Crawford, supra, at 51 (contrasting "[a]n off-hand, overheard remark" with the abuses targeted by the Confrontation Clause). Accordingly, it is unlikely that the Framers intended the word "witness" to be read so broadly as to include such statements. Cf. Dutton v. Evans, 400 U.S. 74, 94 (1970) (Harlan, J., concurring in result) (rejecting the "assumption that the core purpose of the Confrontation Clause of the Sixth Amendment is to prevent overly broad exceptions to the hearsay rule"). In Crawford, we recognized that this history could be squared with the language of the Clause, giving rise to a workable, and more accurate, interpretation of the Clause. "`[W]itnesses,'" we said, are those who "`bear testimony.'" 541 U.S., at 51 (quoting 1 N. Webster, An American Dictionary of the English Language (1828)). And "`[t]estimony'" is "`[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.'" 541 U.S., at 51 (quoting Webster, supra). Admittedly, we did not set forth a detailed framework for addressing whether a statement is "testimonial" and thus subject to the Confrontation Clause. But the plain terms of the "testimony" definition we endorsed necessarily require some degree of solemnity before a statement can be deemed "testimonial." This requirement of solemnity supports my view that the statements regulated by the Confrontation Clause must include "extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions." White, supra, at 365 (opinion of Thomas, J.). Affidavits, depositions, and prior testimony 837 are, by their very nature, taken through a formalized process. Likewise, confessions, when extracted by police in a formal manner, carry sufficient indicia of solemnity to constitute formalized statements and, accordingly, bear a "striking resemblance," Crawford, supra, at 52, to the examinations of the accused and accusers under the Marian statutes.[1] See generally Langbein, supra, at 21-34. Although the Court concedes that the early American cases invoking the right to confrontation or the Confrontation Clause itself all "clearly involve[d] testimony" as defined in Crawford, ante, at 824, it fails to acknowledge that all of the cases it cites fall within the narrower category of formalized testimonial materials I have proposed. See ante, at 824, n. 3.[2] Interactions between the police and an accused (or witnesses) resemble Marian proceedingsand these early casesonly when the interactions are somehow rendered "formal." In Crawford, for example, the interrogation was custodial, taken after warnings given pursuant to Miranda v. Arizona, 384 U.S. 436 (1966). 541 U.S., at 38. Miranda warnings, by their terms, inform a prospective defendant 838 that "`anything he says can be used against him in a court of law.'" Dickerson v. United States, 530 U.S. 428, 435 (2000) (quoting Miranda, supra, at 479). This imports a solemnity to the process that is not present in a mere conversation between a witness or suspect and a police officer.[3] The Court all but concedes that no case can be cited for its conclusion that the Confrontation Clause also applies to informal police questioning under certain circumstances. Ante, at 824-826. Instead, the sole basis for the Court's conclusion is its apprehension that the Confrontation Clause will "readily be evaded" if it is only applicable to formalized testimonial materials. Ante, at 826. But the Court's proposed solution to the risk of evasion is needlessly overinclusive. Because the Confrontation Clause sought to regulate prosecutorial abuse occurring through use of ex parte statements as evidence against the accused, it also reaches the use of technically informal statements when used to evade the formalized process. Cf. ibid. That is, even if the interrogation itself is not formal, the production of evidence by the prosecution at trial would resemble the abuses targeted by the Confrontation Clause if the prosecution attempted to use out-of-court statements as a means of circumventing the literal right of confrontation, see Coy v. Iowa, 487 U.S. 1012 (1988). In such a case, the Confrontation Clause could fairly be applied to exclude the hearsay statements offered by the prosecution, preventing evasion without simultaneously excluding evidence offered by the prosecution in good faith. The Court's standard is not only disconnected from history and unnecessary to prevent abuse; it also yields no predictable results to police officers and prosecutors attempting to comply with the law. Cf. Crawford, supra, at 68, n. 10 (criticizing 839 unpredictability of the pre-Crawford test); White, 502 U. S., at 364-365 (Thomas, J., concurring in part and concurring in judgment) (limiting the Confrontation Clause to the discrete category of materials historically abused would "greatly simplify" application of the Clause). In many, if not most, cases where police respond to a report of a crime, whether pursuant to a 911 call from the victim or otherwise, the purposes of an interrogation, viewed from the perspective of the police, are both to respond to the emergency situation and to gather evidence. See New York v. Quarles, 467 U.S. 649, 656 (1984) ("Undoubtedly most police officers [deciding whether to give Miranda warnings in a possible emergency situation] would act out of a host of different, instinctive, and largely unverifiable motivestheir own safety, the safety of others, and perhaps as well the desire to obtain incriminating evidence from the suspect"). Assigning one of these two "largely unverifiable motives," ibid., primacy requires constructing a hierarchy of purpose that will rarely be presentand is not reliably discernible. It will inevitably be, quite simply, an exercise in fiction. The Court's repeated invocation of the word "objectiv[e]" to describe its test, see ante, at 822, 827, 828, 830, however, suggests that the Court may not mean to reference purpose at all, but instead to inquire into the function served by the interrogation. Certainly such a test would avoid the pitfalls that have led us repeatedly to reject tests dependent on the subjective intentions of police officers.[4] It would do so, however, at the cost of being even more disconnected from the 840 prosecutorial abuses targeted by the Confrontation Clause. Additionally, it would shift the ability to control whether a violation occurred from the police and prosecutor to the judge, whose determination as to the "primary purpose" of a particular interrogation would be unpredictable and not necessarily tethered to the actual purpose for which the police performed the interrogation. B Neither the 911 call at issue in Davis nor the police questioning at issue in Hammon is testimonial under the appropriate framework. Neither the call nor the questioning is itself a formalized dialogue.[5] Nor do any circumstances surrounding the taking of the statements render those statements sufficiently formal to resemble the Marian examinations; the statements were neither Mirandized nor custodial, nor accompanied by any similar indicia of formality. Finally, there is no suggestion that the prosecution attempted to offer the women's hearsay evidence at trial in order to evade confrontation. See 829 N.E.2d 444, 447 (Ind. 2005) (prosecution subpoenaed Amy Hammon to testify, but she was not present); 154 Wash. 2d 291, 296, 111 P.3d 844, 847 (2005) (en banc) (State was unable to locate Michelle McCottry at the time of trial). Accordingly, the statements at issue in both cases are nontestimonial and admissible under the Confrontation Clause. The Court's determination that the evidence against Hammon must be excluded extends the Confrontation Clause far beyond the abuses it was intended to prevent. When combined with the Court's holding that the evidence against Davis is perfectly admissible, however, the Court's Hammon 841 holding also reveals the difficulty of applying the Court's requirement that courts investigate the "primary purpose[s]" of the investigation. The Court draws a line between the two cases based on its explanation that Hammon involves "no emergency in progress," but instead, mere questioning as "part of an investigation into possibly criminal past conduct," ante, at 829, and its explanation that Davis involves questioning for the "primary purpose" of "enabl[ing] police assistance to meet an ongoing emergency," ante, at 828. But the fact that the officer in Hammon was investigating Mr. Hammon's past conduct does not foreclose the possibility that the primary purpose of his inquiry was to assess whether Mr. Hammon constituted a continuing danger to his wife, requiring further police presence or action. It is hardly remarkable that Hammon did not act abusively toward his wife in the presence of the officers, ante, at 829-830, and his good judgment to refrain from criminal behavior in the presence of police sheds little, if any, light on whether his violence would have resumed had the police left without further questioning, transforming what the Court dismisses as "past conduct" back into an "ongoing emergency," ante, at 828, 829.[6] Nor does the mere fact that McCottry needed emergency aid shed light on whether the "primary purpose" of gathering, for example, the name of her assailant was to protect the police, to protect the victim, or to gather information for prosecution. In both of the cases before the Court, like many similar cases, pronouncement of the "primary" 842 motive behind the interrogation calls for nothing more than a guess by courts. II Because the standard adopted by the Court today is neither workable nor a targeted attempt to reach the abuses forbidden by the Clause, I concur only in the judgment in Davis v. Washington, No. 05-5224, and respectfully dissent from the Court's resolution of Hammon v. Indiana, No. 05-5705.	These cases require us to determine when statements made to law enforcement personnel during a 911 call or at a crime scene are "testimonial" and thus subject to the requirements of the Sixth Amendment's Confrontation Clause I A The relevant statements in Davis v Washington, No 05-5224, were made to a 911 emergency operator on February 1, 2001 When the operator answered the initial call, the connection terminated before anyone spoke She reversed the call, and Michelle McCottry answered In the ensuing conversation, the operator ascertained that McCottry was involved in a domestic disturbance with her former boyfriend Adrian Davis, the petitioner in this case: "911 Operator: Hello "Complainant: Hello "911 Operator: What's going on? "Complainant: He's here jumpin' on me again "911 Operator: Okay Listen to me carefully Are you in a house or an apartment? "Complainant: I'm in a house "911 Operator: Are there any weapons? "Complainant: No He's usin' his fists "911 Operator: Okay Has he been drinking? "Complainant: No "911 Operator: Okay, sweetie I've got help started Stay on the line with me, okay? "Complainant: I'm on the line 818 "911 Operator: Listen to me carefully Do you know his last name? "Complainant: It's Davis "911 Operator: Davis? Okay, what's his first name? "Complainant: Adran "911 Operator: What is it? "Complainant: Adrian "911 Operator: Adrian? "Complainant: Yeah "911 Operator: Okay What's his middle initial? "Complainant: Martell He's runnin' now" App in No 05-5224, pp 8-9 As the conversation continued, the operator learned that Davis had "just r[un] out the door" after hitting McCottry, and that he was leaving in a car with someone else McCottry started talking, but the operator cut her off, saying, "Stop talking and answer my questions" She then gathered more information about Davis (including his birthday), and learned that Davis had told McCottry that his purpose in coming to the house was "to get his stuff," since McCottry was moving McCottry described the context of the assault, after which the operator told her that the police were on their way "They're gonna check the area for him first," the operator said, "and then they're gonna come talk to you" -13 The police arrived within four minutes of the 911 call and observed McCottry's shaken state, the "fresh injuries on her forearm and her face," and her "frantic efforts to gather her belongings and her children so that they could leave the residence" The State charged Davis with felony violation of a domestic no-contact order "The State's only witnesses were the two police officers who responded to the 911 call Both officers testified that McCottry exhibited injuries that appeared 819 to be recent, but neither officer could testify as to the cause of the injuries" McCottry presumably could have testified as to whether Davis was her assailant, but she did not appear Over Davis's objection, based on the Confrontation Clause of the Sixth Amendment, the trial court admitted the recording of her exchange with the 911 operator, and the jury convicted him The Washington Court of Appeals affirmed, The Supreme Court of Washington, with one dissenting justice, also affirmed, concluding that the portion of the 911 conversation in which McCottry identified Davis was not testimonial, and that if other portions of the conversation were testimonial, admitting them was harmless beyond a reasonable We granted certiorari B In Hammon v Indiana, No 05-5705, police responded late on the night of February 26, to a "reported domestic disturbance" at the home of Hershel and Amy Hammon They found Amy alone on the front porch, appearing "`somewhat frightened,'" but she told them that "`nothing was the matter,'" at She gave them permission to enter the house, where an officer saw "a gas heating unit in the corner of the living room" that had "flames coming out of the partial glass front There were pieces of glass on the ground in front of it and there was flame emitting from the front of the heating unit" App in No 05-5705, p 16 Hershel, meanwhile, was in the kitchen He told the police "that he and his wife had `been in an argument' but `everything was fine now' and the argument `never became physical'" By this point Amy had come back inside One of the officers remained with Hershel; the other went to the living room to talk with Amy, and "again asked [her] what had occurred" ; App in No 05-5705, at 17, 32 Hershel made several attempts to 820 participate in Amy's conversation with the police, see but was rebuffed The officer later testified that Hershel "became angry when I insisted that [he] stay separated from Mrs Hammon so that we can investigate what had happened" After hearing Amy's account, the officer "had her fill out and sign a battery affidavit" Amy handwrote the following: "Broke our Furnace & shoved me down on the floor into the broken glass Hit me in the chest and threw me down Broke our lamps & phone Tore up my van where I couldn't leave the house Attacked my daughter" The State charged Hershel with domestic battery and with violating his probation Amy was subpoenaed, but she did not appear at his subsequent bench trial The State called the officer who had questioned Amy, and asked him to recount what Amy told him and to authenticate the affidavit Hershel's counsel repeatedly objected to the admission of this evidence See At one point, after hearing the prosecutor defend the affidavit because it was made "under oath," defense counsel said, "That doesn't give us the opportunity to cross examine [the] person who allegedly drafted it Makes me mad" Nonetheless, the trial court admitted the affidavit as a "present sense impression," 0, and Amy's statements as "excited s" that "are expressly permitted in these kinds of cases even if the declarant is not available to testify," The officer thus testified that Amy "informed me that she and Hershel had been in an argument That he became irrate [sic] over the fact of their daughter going to a boyfriend's house The argument became physical after being verbal and she informed me that Mr Hammon, during the verbal part of the argument was breaking things in the living room and I believe she stated he broke the phone, broke the lamp, broke the front of the heater When it became physical he threw her down into the glass of the heater 821 "She informed me Mr Hammon had pushed her onto the ground, had shoved her head into the broken glass of the heater and that he had punched her in the chest twice I believe" The trial judge found Hershel guilty on both charges, and the Indiana Court of Appeals affirmed in relevant part, The Indiana Supreme Court also affirmed, concluding that Amy's statement was admissible for state-law purposes as an excited ; that "a `testimonial' statement is one given or taken in significant part for purposes of preserving it for potential future use in legal proceedings," where "the motivations of the questioner and declarant are the central concerns," ; and that Amy's oral statement was not "testimonial" under these standards, It also concluded that, although the affidavit was testimonial and thus wrongly admitted, it was harmless beyond a reasonable doubt, largely because the trial was to the bench -459 We granted certiorari II The Confrontation Clause of the Sixth Amendment provides: "In all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him" In we held that this provision bars "admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination" A critical portion of this holding, and the portion central to resolution of the two cases now before us, is the phrase "testimonial statements" Only statements of this sort cause the declarant to be a "witness" within the meaning of the Confrontation Clause See It is the testimonial character of the statement that separates it from other hearsay that, while subject to traditional limitations upon hearsay evidence, is not subject to the Confrontation Clause 822 Our opinion in set forth "[v]arious formulations" of the core class of "`testimonial'" statements, ib but found it unnecessary to endorse any of them, because "some statements qualify under any definition," Among those, we said, were "[s]tatements taken by police officers in the course of interrogations," ibid; see also The questioning that generated the deponent's statement in which was made and recorded while she was in police custody, after having been given warnings as a possible suspect herself"qualifies under any conceivable definition" of an "`interrogation,'" 541 US, n 4 We therefore did not define that term, except to say that "[w]e use [it] in its colloquial, rather than any technical legal, sense," and that "one can imagine various definitions and we need not select among them in this case" The character of the statements in the present cases is not as clear, and these cases require us to determine more precisely which police interrogations produce testimony Without attempting to produce an exhaustive classification of all conceivable statementsor even all conceivable statements in response to police interrogationas either testimonial or nontestimonial, it suffices to decide the present cases to hold as follows: Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution[1] 823 III A In it sufficed for resolution of the case before us to determine that "even if the Sixth Amendment is not solely concerned with testimonial hearsay, that is its primary object, and interrogations by law enforcement officers fall squarely within that class" Moreover, as we have just described, the facts of that case spared us the need to define what we meant by "interrogations" The Davis case today does not permit us this luxury of indecision The inquiries of a police operator in the course of a 911 call[2] are an interrogation in one sense, but not in a sense that "qualifies under any conceivable definition" We must decide, therefore, whether the Confrontation Clause applies only to testimonial hearsay; and, if so, whether the recording of a 911 call qualifies The answer to the first question was suggested in even if not explicitly held: "The text of the Confrontation Clause reflects this focus [on testimonial hearsay] It applies to `witnesses' against the accusedin other words, those who `bear testimony' 1 N An American Dictionary of 824 the English Language (1828) `Testimony,' in turn, is typically `a solemn declaration or affirmation made for the purpose of establishing or proving some fact' An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not" 541 US, A limitation so clearly reflected in the text of the constitutional provision must fairly be said to mark out not merely its "core," but its perimeter We are not aware of any early American case invoking the Confrontation Clause or the common-law right to confrontation that did not clearly involve testimony as thus defined[3] Well into the 20th century, our own Confrontation Clause jurisprudence was carefully applied only in the testimonial context See, e g, ; ; ; ; Even our later cases, conforming to the reasoning of[4] never in practice dispensed with the Confrontation Clause requirements of unavailability and prior cross-examination in cases that involved testimonial hearsay, see -59 (citing cases), with one arguable exception, see ) Where our cases did dispense with those requirementseven under the Roberts approachthe statements at issue were clearly nontestimonial See, e g, ; (statements from one prisoner to another) Most of the American cases applying the Confrontation Clause or its state constitutional or common-law counter-parts 826 involved testimonial statements of the most formal sortsworn testimony in prior judicial proceedings or formal depositions under oathwhich invites the argument that the scope of the Clause is limited to that very formal category But the English cases that were the progenitors of the Confrontation Clause did not limit the exclusionary rule to prior court testimony and formal depositions, see and n 3 In any event, we do not think it conceivable that the protections of the Confrontation Clause can readily be evaded by having a note-taking policeman recite the unsworn hearsay testimony of the declarant, instead of having the declarant sign a deposition Indeed, if there is one point for which no caseEnglish or early American, state or federalcan be cited, that is it The question before us in Davis, then, is whether, objectively considered, the interrogation that took place in the course of the 911 call produced testimonial statements When we said in that "interrogations by law enforcement officers fall squarely within [the] class" of testimonial hearsay, we had immediately in mind (for that was the case before us) interrogations solely directed at establishing the facts of a past crime, in order to identify (or provide evidence to convict) the perpetrator The product of such interrogation, whether reduced to a writing signed by the declarant or embedded in the memory (and perhaps notes) of the interrogating officer, is testimonial It is, in the terms of the 1828 American dictionary quoted in "`[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact'" 541 US, ; WI 53, 827 ¶ 30, (state criminal offense to "knowingly giv[e] false information to [an] officer with [the] intent to mislead the officer in the performance of his or her duty")) A 911 call, on the other hand, and at least the initial interrogation conducted in connection with a 911 call, is ordinarily not designed primarily to "establis[h] or prov[e]" some past fact, but to describe current circumstances requiring police assistance The difference between the interrogation in Davis and the one in is apparent on the face of things In Davis, McCottry was speaking about events as they were actually happening, rather than "describ[ing] past events," Sylvia 's interrogation, on the other hand, took place hours after the events she described had occurred Moreover, any reasonable listener would recognize that McCottry (unlike Sylvia ) was facing an ongoing emergency Although one might call 911 to provide a narrative report of a crime absent any imminent danger, McCottry's call was plainly a call for help against a bona fide physical threat Third, the nature of what was asked and answered in Davis, again viewed objectively, was such that the elicited statements were necessary to be able to resolve the present emergency, rather than simply to learn (as in ) what had happened in the past That is true even of the operator's effort to establish the identity of the assailant, so that the dispatched officers might know whether they would be encountering a violent felon See, e g, And finally, the difference in the level of formality between the two interviews is striking was responding calmly, at the station house, to a series of questions, with the officer-interrogator taping and making notes of her answers; McCottry's frantic answers were provided over the phone, in an environment that was not tranquil, or even (as far as any reasonable 911 operator could make out) safe 828 We conclude from all this that the circumstances of McCottry's interrogation objectively indicate its primary purpose was to enable police assistance to meet an ongoing emergency She simply was not acting as a witness; she was not testifying What she said was not "a weaker substitute for live testimony" at trial, United like Lord Cobham's statements in Raleigh's Case, 2 How St Tr 1 (1603), or Jane Dingler's ex parte statements against her husband in King v Dingler, 2 Leach 561, 168 Eng Rep 383 (1791), or Sylvia 's statement in In each of those cases, the ex parte actors and the evidentiary products of the ex parte communication aligned perfectly with their courtroom analogues McCottry's emergency statement does not No "witness" goes into court to proclaim an emergency and seek help Davis seeks to cast McCottry in the unlikely role of a witness by pointing to English cases None of them involves statements made during an ongoing emergency In King v Brasier, 1 Leach 199, 168 Eng Rep 202 (1779), for example, a young rape victim, "immediately on her coming home, told all the circumstances of the injury" to her mother 00, 168 Eng Rep, 02 The case would be helpful to Davis if the relevant statement had been the girl's screams for aid as she was being chased by her assailant But by the time the victim got home, her story was an account of past events This is not to say that a conversation which begins as an interrogation to determine the need for emergency assistance cannot, as the Indiana Supreme Court put it, "evolve into testimonial statements," once that purpose has been achieved In this case, for example, after the operator gained the information needed to address the exigency of the moment, the emergency appears to have ended (when Davis drove away from the premises) The operator then told McCottry to be quiet, and proceeded to pose a battery of questions It could readily be maintained that, 829 from that point on, McCottry's statements were testimonial, not unlike the "structured police questioning" that occurred in 541 U S, n 4 This presents no great problem Just as, for Fifth Amendment purposes, "police officers can and will distinguish almost instinctively between questions necessary to secure their own safety or the safety of the public and questions designed solely to elicit testimonial evidence from a suspect," New trial courts will recognize the point at which, for Sixth Amendment purposes, statements in response to interrogations become testimonial Through in limine procedure, they should redact or exclude the portions of any statement that have become testimonial, as they do, for example, with unduly prejudicial portions of otherwise admissible evidence Davis's jury did not hear the complete 911 call, although it may well have heard some testimonial portions We were asked to classify only McCottry's early statements identifying Davis as her assailant, and we agree with the Washington Supreme Court that they were not testimonial That court also concluded that, even if later parts of the call were testimonial, their admission was harmless beyond a reasonable Davis does not challenge that holding, and we therefore assume it to be correct B Determining the testimonial or nontestimonial character of the statements that were the product of the interrogation in Hammon is a much easier task, since they were not much different from the statements we found to be testimonial in It is entirely clear from the circumstances that the interrogation was part of an investigation into possibly criminal past conductas, indeed, the testifying officer expressly acknowledged, App in No 05-5705, 5, 32, 34 There was no emergency in progress; the interrogating officer testified that he had heard no arguments or crashing and saw no one throw or break anything, 5 When the 830 officers first arrived, Amy told them that things were fine, and there was no immediate threat to her person When the officer questioned Amy for the second time, and elicited the challenged statements, he was not seeking to determine (as in Davis) "what is happening," but rather "what happened" Objectively viewed, the primary, if not indeed the sole, purpose of the interrogation was to investigate a possible crimewhich is, of course, precisely what the officer should have done It is true that the interrogation was more formal It followed a warning, was tape-recorded, and took place at the station house, see 541 US, n 4 While these features certainly strengthened the statements' testimonial aspectmade it more objectively apparent, that is, that the purpose of the exercise was to nail down the truth about past criminal eventsnone was essential to the point It was formal enough that Amy's interrogation was conducted in a separate room, away from her husband (who tried to intervene), with the officer receiving her replies for use in his "investigat[ion]" App in No 05-5705, What we called the "striking resemblance" of the statement to civil-law ex parte 541 US, is shared by Amy's statement here Both declarants were actively separated from the defendantofficers forcibly prevented Hershel from participating in the interrogation Both statements deliberately recounted, in response to police questioning, how potentially criminal past events began and progressed And both took place some time after the events described were over Such statements under official interrogation are an obvious substitute for live testimony, because they do precisely what a witness does on direct examination; they are inherently testimonial[5] 831 Both Indiana and the United States as amicus curiae argue that this case should be resolved much like Davis For the reasons we find the comparison to compelling, we find the comparison to Davis unpersuasive The statements in Davis were taken when McCottry was alone, not only unprotected by police (as Amy Hammon was protected), but apparently in immediate danger from Davis She was seeking aid, not telling a story about the past McCottry's present-tense statements showed immediacy; 832 Amy's narrative of past events was delivered at some remove in time from the danger she described And after Amy answered the officer's questions, he had her execute an affidavit, in order, he testified, "[t]o establish events that have occurred previously" App in No 05-5705, Although we necessarily reject the Indiana Supreme Court's implication that virtually any "initial inquiries" at the crime scene will not be testimonial, see 457, we do not hold the oppositethat no questions at the scene will yield nontestimonial answers We have already observed of domestic disputes that "[o]fficers called to investigate need to know whom they are dealing with in order to assess the situation, the threat to their own safety, and possible danger to the potential victim" U S, 6 Such exigencies may often mean that "initial inquiries" produce nontestimonial statements But in cases like this one, where Amy's statements were neither a cry for help nor the provision of information enabling officers immediately to end a threatening situation, the fact that they were given at an alleged crime scene and were "initial inquiries" is immaterial Cf n 3[6] IV Respondents in both cases, joined by a number of their amici, contend that the nature of the offenses charged in these two casesdomestic violencerequires greater flexibility in the use of testimonial evidence This particular 833 type of crime is notoriously susceptible to intimidation or coercion of the victim to ensure that she does not testify at trial When this occurs, the Confrontation Clause gives the criminal a windfall We may not, however, vitiate constitutional guarantees when they have the effect of allowing the guilty to go free Cf But when defendants seek to undermine the judicial process by procuring or coercing silence from witnesses and victims, the Sixth Amendment does not require courts to acquiesce While defendants have no duty to assist the State in proving their guilt, they do have the duty to refrain from acting in ways that destroy the integrity of the criminal-trial system We reiterate what we said in : that "the rule of forfeiture by wrongdoing extinguishes confrontation claims on essentially equitable grounds" (citing -159) That is, one who obtains the absence of a witness by wrongdoing forfeits the constitutional right to confrontation We take no position on the standards necessary to demonstrate such forfeiture, but federal courts using Federal Rule of Evidence 804(b)(6), which codifies the forfeiture doctrine, have generally held the Government to the preponderance-of-the-evidence standard, see, e g, United State courts tend to follow the same practice, see, e g, Moreover, if a hearing on forfeiture is required, Edwards, for instance, observed that "hearsay evidence, including the unavailable witness's out-of-court statements, may be considered" The Roberts approach to the Confrontation Clause undoubtedly made recourse to this doctrine less necessary, because prosecutors could show the "reliability" of ex parte statements more easily than they could show the defendant's procurement of the witness's absence 834 in overruling Roberts, did not destroy the ability of courts to protect the integrity of their proceedings We have determined that, absent a finding of forfeiture by wrongdoing, the Sixth Amendment operates to exclude Amy Hammon's affidavit The Indiana courts may (if they are asked) determine on remand whether such a claim of forfeiture is properly raised and, if so, whether it is meritorious * * * We affirm the judgment of the Supreme Court of Washington in No 05-5224 We reverse the judgment of the Supreme Court of Indiana in No 05-5705, and remand the case to that court for proceedings not inconsistent with this opinion It is so ordered JUSTICE THOMAS, concurring in the judgment in part and dissenting in part In we abandoned the general reliability inquiry we had long employed to judge the admissibility of hearsay evidence under the Confrontation Clause, describing that inquiry as "inherently, and therefore permanently, unpredictable" Today, a mere two years after the Court decided it adopts an equally unpredictable test, under which district courts are charged with divining the "primary purpose" of police interrogations Ante, at 822 Besides being difficult for courts to apply, this test characterizes as "testimonial," and therefore inadmissible, evidence that bears little resemblance to what we have recognized as the evidence targeted by the Confrontation Clause Because neither of the cases before the Court today would implicate the Confrontation Clause under an appropriately targeted standard, I concur only in the judgment in Davis v Washington, No 05-5224, and dissent from the Court's resolution of Hammon v Indiana, No 05-5705 835 I A The Confrontation Clause provides that "[i]n all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him " U S Const, Amdt 6 We have recognized that the operative phrase in the Clause, "witnesses against him," could be interpreted narrowly, to reach only those witnesses who actually testify at trial, or more broadly, to reach many or all of those whose out-of-court statements are offered at trial ; Because the narrowest interpretation of the Clause would conflict with both the history giving rise to the adoption of the Clause and this Court's precedent, we have rejected such a reading See ; Rejection of the narrowest view of the Clause does not, however, require the broadest application of the Clause to exclude otherwise admissible hearsay evidence The history surrounding the right to confrontation supports the conclusion that it was developed to target particular practices that occurred under the English bail and committal statutes passed during the reign of Queen Mary, namely, the "civil-law mode of criminal procedure, and particularly its use of ex parte as evidence against the accused" ; ; "The predominant purpose of the [Marian committal] statute was to institute systematic questioning of the accused and the witnesses" J Prosecuting Crime in the Renaissance 23 (1974) (emphasis added) The statute required an oral examination of the suspect and the accusers, transcription within two days of the and physical transmission to the judges hearing the case 836 23 These came to be used as evidence in some cases, in lieu of a personal appearance by the witness ; 9 W Holdsworth, A History of English Law 223-229 (1926) Many statements that would be inadmissible as a matter of hearsay law bear little resemblance to these evidentiary practices, which the Framers proposed the Confrontation Clause to prevent See, e g, Accordingly, it is unlikely that the Framers intended the word "witness" to be read so broadly as to include such statements Cf (rejecting the "assumption that the core purpose of the Confrontation Clause of the Sixth Amendment is to prevent overly broad exceptions to the hearsay rule") In we recognized that this history could be squared with the language of the Clause, giving rise to a workable, and more accurate, interpretation of the Clause "`[W]itnesses,'" we said, are those who "`bear testimony'" 541 US, And "`[t]estimony'" is "`[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact'" 541 US, (quoting Admittedly, we did not set forth a detailed framework for addressing whether a statement is "testimonial" and thus subject to the Confrontation Clause But the plain terms of the "testimony" definition we endorsed necessarily require some degree of solemnity before a statement can be deemed "testimonial" This requirement of solemnity supports my view that the statements regulated by the Confrontation Clause must include "extrajudicial statements contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions" Affidavits, depositions, and prior testimony 837 are, by their very nature, taken through a formalized process Likewise, confessions, when extracted by police in a formal manner, carry sufficient indicia of solemnity to constitute formalized statements and, accordingly, bear a "striking resemblance," to the of the accused and accusers under the Marian statutes[1] See generally 1-34 Although the Court concedes that the early American cases invoking the right to confrontation or the Confrontation Clause itself all "clearly involve[d] testimony" as defined in ante, at 824, it fails to acknowledge that all of the cases it cites fall within the narrower category of formalized testimonial materials I have proposed See ante, at 824, n 3[2] Interactions between the police and an accused (or witnesses) resemble Marian proceedingsand these early casesonly when the interactions are somehow rendered "formal" In for example, the interrogation was custodial, taken after warnings given pursuant to warnings, by their terms, inform a prospective defendant 838 that "`anything he says can be used against him in a court of law'" Dickerson v United States, 530 US 428, (quoting ) This imports a solemnity to the process that is not present in a mere conversation between a witness or suspect and a police officer[3] The Court all but concedes that no case can be cited for its conclusion that the Confrontation Clause also applies to informal police questioning under certain circumstances Ante, at 824-826 Instead, the sole basis for the Court's conclusion is its apprehension that the Confrontation Clause will "readily be evaded" if it is only applicable to formalized testimonial materials Ante, at 826 But the Court's proposed solution to the risk of evasion is needlessly overinclusive Because the Confrontation Clause sought to regulate prosecutorial abuse occurring through use of ex parte statements as evidence against the accused, it also reaches the use of technically informal statements when used to evade the formalized process Cf ibid That is, even if the interrogation itself is not formal, the production of evidence by the prosecution at trial would resemble the abuses targeted by the Confrontation Clause if the prosecution attempted to use out-of-court statements as a means of circumventing the literal right of confrontation, see Coy v Iowa, 487 US 1012 In such a case, the Confrontation Clause could fairly be applied to exclude the hearsay statements offered by the prosecution, preventing evasion without simultaneously excluding evidence offered by the prosecution in good faith The Court's standard is not only disconnected from history and unnecessary to prevent abuse; it also yields no predictable results to police officers and prosecutors attempting to comply with the law Cf (criticizing 839 unpredictability of the pre- test); 502 U S, at 364-365 (limiting the Confrontation Clause to the discrete category of materials historically abused would "greatly simplify" application of the Clause) In many, if not most, cases where police respond to a report of a crime, whether pursuant to a 911 call from the victim or otherwise, the purposes of an interrogation, viewed from the perspective of the police, are both to respond to the emergency situation and to gather evidence See New ("Undoubtedly most police officers [deciding whether to give warnings in a possible emergency situation] would act out of a host of different, instinctive, and largely unverifiable motivestheir own safety, the safety of others, and perhaps as well the desire to obtain incriminating evidence from the suspect") Assigning one of these two "largely unverifiable motives," ib primacy requires constructing a hierarchy of purpose that will rarely be presentand is not reliably discernible It will inevitably be, quite simply, an exercise in fiction The Court's repeated invocation of the word "objectiv[e]" to describe its test, see ante, at 822, 827, 828, 830, however, suggests that the Court may not mean to reference purpose at all, but instead to inquire into the function served by the interrogation Certainly such a test would avoid the pitfalls that have led us repeatedly to reject tests dependent on the subjective intentions of police officers[4] It would do so, however, at the cost of being even more disconnected from the 840 prosecutorial abuses targeted by the Confrontation Clause Additionally, it would shift the ability to control whether a violation occurred from the police and prosecutor to the judge, whose determination as to the "primary purpose" of a particular interrogation would be unpredictable and not necessarily tethered to the actual purpose for which the police performed the interrogation B Neither the 911 call at issue in Davis nor the police questioning at issue in Hammon is testimonial under the appropriate framework Neither the call nor the questioning is itself a formalized dialogue[5] Nor do any circumstances surrounding the taking of the statements render those statements sufficiently formal to resemble the Marian ; the statements were neither Mirandized nor custodial, nor accompanied by any similar indicia of formality Finally, there is no suggestion that the prosecution attempted to offer the women's hearsay evidence at trial in order to evade confrontation See ; (State was unable to locate Michelle McCottry at the time of trial) Accordingly, the statements at issue in both cases are nontestimonial and admissible under the Confrontation Clause The Court's determination that the evidence against Hammon must be excluded extends the Confrontation Clause far beyond the abuses it was intended to prevent When combined with the Court's holding that the evidence against Davis is perfectly admissible, however, the Court's Hammon 841 holding also reveals the difficulty of applying the Court's requirement that courts investigate the "primary purpose[s]" of the investigation The Court draws a line between the two cases based on its explanation that Hammon involves "no emergency in progress," but instead, mere questioning as "part of an investigation into possibly criminal past conduct," ante, at 829, and its explanation that Davis involves questioning for the "primary purpose" of "enabl[ing] police assistance to meet an ongoing emergency," ante, at 828 But the fact that the officer in Hammon was investigating Mr Hammon's past conduct does not foreclose the possibility that the primary purpose of his inquiry was to assess whether Mr Hammon constituted a continuing danger to his wife, requiring further police presence or action It is hardly remarkable that Hammon did not act abusively toward his wife in the presence of the officers, ante, at 829-830, and his good judgment to refrain from criminal behavior in the presence of police sheds little, if any, light on whether his violence would have resumed had the police left without further questioning, transforming what the Court dismisses as "past conduct" back into an "ongoing emergency," ante, at 828, 829[6] Nor does the mere fact that McCottry needed emergency aid shed light on whether the "primary purpose" of gathering, for example, the name of her assailant was to protect the police, to protect the victim, or to gather information for prosecution In both of the cases before the Court, like many similar cases, pronouncement of the "primary" 842 motive behind the interrogation calls for nothing more than a guess by courts II Because the standard adopted by the Court today is neither workable nor a targeted attempt to reach the abuses forbidden by the Clause, I concur only in the judgment in Davis v Washington, No 05-5224, and respectfully dissent from the Court's resolution of Hammon v Indiana, No 05-5705	2,072
Justice Ginsburg	majority	false	Franconia Associates v. United States	2002-06-10	null	https://www.courtlistener.com/opinion/121150/franconia-associates-v-united-states/	https://www.courtlistener.com/api/rest/v3/clusters/121150/	2,002	2001-062	2	9	0	The two cases consolidated for our review concern the timeliness of claims filed against the United States under the Tucker Act, 28 U.S. C. § 1491. Petitioners are property owners who participated in a federal program to promote development of affordable rental housing in areas not traditionally served by conventional lenders. In exchange for low-interest mortgage loans issued by the Farmers Home Administration (FmHA), petitioners agreed to devote their 133 properties to low- and middle-income housing and to abide by related restrictions during the life of the loans. Petitioners allege that the promissory notes governing their loans guaranteed the borrower the right to prepay at any time and thereby gain release from the federal program and the restrictions it places on the use of a participating owner's property. In the suits that yielded the judgments before us, petitioners charged that Congress abridged that release right in the Emergency Low Income Housing Preservation Act of 1987 (ELIHPA or Act), 101 Stat. 1877, as amended, 42 U.S. C. § 1472(c) (1994 ed. and Supp. V). That Act placed permanent restraints upon prepayment of FmHA loans. Petitioners asserted in their complaints that ELIHPA effected both a repudiation of their contracts and a taking of their property in violation of the Fifth Amendment. The Federal Circuit held petitioners' claims time barred under 28 U.S. C. § 2501, which prescribes that all Tucker Act claims must be filed within six years of the date they "first accrue[d]." In the Federal Circuit's view, passage of ELIHPA constituted an immediate breach of the FmHA loan agreements and therefore triggered the running of the limitations period. Petitioners filed suit not "within six years of," but over nine years after, ELIHPA's enactment. On that account, the Federal Circuit held their claims untimely, and their suits properly dismissed. Accepting for purposes of this decision that the loan contracts guaranteed the absolute prepayment right petitioners allege, we reverse the Federal Circuit's judgment. ELIHPA's enactment, we conclude, qualified as a repudiation of the parties' bargain, not a present breach of the loan agreements. Accordingly, breach would occur, and the sixyear limitations period would commence to run, when a borrower tenders prepayment and the Government then dishonors its obligation to accept the tender and release its control over use of the property that secured the loan. 134 I A Under §§ 515 and 521 of the Housing Act of 1949, 76 Stat. 671, 82 Stat. 551, as amended, 42 U.S. C. §§ 1485, 1490a, the FmHA makes direct loans to private, nonprofit entities to develop or construct rural housing designed to serve the elderly and low- or middle-income individuals and families.[1] Section 515 loans require the borrower, inter alia, to execute various loan documents, including a loan agreement, a promissory note, and a real estate mortgage. Before December 21, 1979, each petitioner entered into a loan agreement with the FmHA under §§ 515 and 521 "to provide rental housing and related facilities for eligible occupants . . . in rural areas." App. to Pet. for Cert. A165. In the loan agreements, each petitioner certified that it was unable to obtain a comparable loan in the commercial market. See id., at A177. The loan agreements contained various provisions designed to ensure that the projects were affordable for people with low incomes. Those provisions included restrictions as to eligible tenants, the rents petitioners could charge, and the rate of return petitioners could realize, as well as requirements regarding the maintenance and financial operations of each project. See id., at A170A174. Each loan agreement also specified the length of the loan, ordinarily 40 or 50 years. The promissory notes executed by petitioners required payment of the principal on each mortgage in scheduled installments, plus interest. See id., at A176A177. The 135 notes also contained the prepayment provision curtailed by the legislation involved in the litigation now before us. That provision read: "Prepayments of scheduled installments, or any portion thereof, may be made at any time at the option of Borrower." Id., at A176. No other provision of the loan documents addressed prepayment. In 1979, Congress found that many § 515 participants had prepaid their mortgages, thus threatening the continued availability of affordable rural housing. Concerned that "these projects [remain] available to low and moderate income families for the entire original term of the loan," H. R. Rep. No. 96-154, p. 43 (1979), Congress amended the National Housing Act to stem the loss of low-cost rural housing due to prepayments, see Housing and Community Development Amendments of 1979, 93 Stat. 1101. In these 1979 amendments, Congress prohibited the FmHA from accepting prepayment of any loan made before or after the date of enactment unless the owner agreed to maintain the lowincome use of the rental housing for a 15-year or 20-year period from the date of the loan. 93 Stat. 1134-1135. That requirement could be avoided if the FmHA determined that there was no longer a need for the low-cost housing. Id., at 1135. The 1979 amendments applied to all program loans, past, present, and future. In 1980, however, Congress further amended the National Housing Act to eliminate retroactive application of the § 515 prepayment limitations imposed by the 1979 legislation. The Housing and Community Development Act of 1980, 94 Stat. 1614, provided that the prepayment restrictions would apply only to loans entered into after December 21, 1979, the date that amendment was enacted. § 514, 94 Stat. 1671-1672. The 1980 Act also required the Secretary of Agriculture to inform Congress of the repeal's adverse effects, if any, on the availability of low-income housing. Id., at 1672. 136 By 1987, Congress had again become concerned about the dwindling supply of low- and moderate-income rural housing in the face of increasing prepayments of mortgages under § 515.[2] A House of Representatives Committee found that owners were "prepay[ing] or . . . refinanc[ing] their FmHA loans, without regard to the low income and elderly tenants in these projects." H. R. Rep. No. 100-122, p. 53. Responsive to that concern, Congress passed ELIHPA, which amended the Housing Act of 1949 to impose permanent restrictions upon prepayment of § 515 mortgages entered into before December 21, 1979. This legislation, enacted on February 5, 1988, provides that before FmHA can accept an offer to prepay such a mortgage, "the [FmHA] shall make reasonable efforts to enter into an agreement with the borrower under which the borrower will make a binding commitment to extend the low income use of the assisted housing and related facilities involved for not less than the 20-year period beginning on the date on which the agreement is executed." 42 U.S. C. § 1472(c)(4)(A) (1994 ed.). The legislation further provides that the FmHA may include incentives in such an agreement, including an increase in the rate of return on investment, reduction of the interest rate on the loan, and an additional loan to the borrower. § 1472(c)(4)(B) (1994 ed. and Supp. V). Under ELIHPA, if the FmHA determines after a "reasonable period" that an agreement cannot be reached, the owner who sought to prepay must offer to sell the housing to "any qualified nonprofit organization or public agency at a fair market value determined by 2 independent appraisers." § 1472(c)(5)(A)(i) (1994 ed.). If an offer to buy is not 137 made by a nonprofit organization or agency within 180 days, the FmHA may accept the owner's offer to prepay. § 1472(c)(5)(A)(ii). The offer-for-sale requirement may be avoided if the FmHA determines that prepayment will not "materially affec[t]" housing opportunities for minorities and one of two other conditions is met: Prepayment will not displace the tenants of the affected housing, or there is "an adequate supply of safe, decent, and affordable rental housing within the market area" and "sufficient actions have been taken to ensure" that such housing "will be made available" to displaced tenants. § 1472(c)(5)(G)(ii). ELIHPA's implementing regulations establish a process by which the FmHA addresses prepayment requests. Under those procedures, the FmHA first "develo[ps] an incentive offer," making a "reasonable effort . . . to enter into an agreement with the borrower to maintain the housing for low-income use that takes into consideration the economic loss the borrower may suffer by foregoing [sic] prepayment." 7 CFR § 1965.210 (2002). Only if the borrower rejects that offer will the FmHA attempt to make the determinationsregarding the effect on minority housing opportunities, the displacement of tenants, and the supply of affordable housing in the marketrequired by 42 U.S. C. § 1472(c)(5)(G) before prepayment can be accepted. 7 CFR § 1965.215(a) (2002).[3] B Petitioners in Franconia filed this action in the United States Court of Federal Claims on May 30, 1997. Plaintiffs included petitionersall of whom had entered into loan agreements before December 21, 1979, and were therefore 138 subject to ELIHPAand others, who had entered into loan agreements after December 21, 1979, and were therefore unaffected by the Act. See App. to Pet. for Cert. A3, n. 2.[4] Petitioners alleged that ELIHPA repudiated their loan contracts, which, they asserted, gave them the right "to terminate their participation in the Government's housing program by exercising their option to prepay at any time." Id., at A112. Their complaint sought relief on two theories: breach of contract and a violation of the Fifth Amendment's proscription against taking property without just compensation. See id., at A132A133. The Court of Federal Claims granted the Government's motion to dismiss petitioners' contract claims as barred by the six-year statute of limitations in 28 U.S. C. § 2501. 43 Fed. Cl. 702 (1999). That provision states: "Every 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." The court concluded that petitioners' contract claims first accrued on May 23, 1988, the effective date of regulations implementing ELIHPA. Id., at 709. That was so, the court said, because those regulations breached the only performance required of the Government under the promissory notes: "to keep its promise to allow borrowers an unfettered prepayment right." Id., at 710. The court also dismissed petitioners' takings claims sua sponte; because "the [Government] conduct . . . alleged to have constituted a taking" was "Congress's change of the prepayment option," the court reasoned, any claim based on that conduct "accrued at the time of the 1988 legislation." Id., at 711. The Federal Circuit affirmed the dismissal of petitioners' claims on timeliness grounds. 240 F.3d 1358 (2001). The 139 Court of Appeals agreed with the Court of Federal Claims on the respective benefits and burdens generated by the promissory notes: Petitioners enjoyed "an unfettered right to prepay their loans at any time," id., at 1363, while the Government had an obligation "to continue to allow borrowers" that option, ibid. If the Government's "continuing duty was breached," the court concluded, "the breach occurred immediately upon enactment of ELIHPA because, by its terms, ELIHPA took away the borrowers' unfettered right of prepayment." Ibid. Thus, the court ruled, the statute of limitations began to run on February 5, 1988, the date of ELIHPA's passage, see id., at 1364;[5] given that limitationstriggering date, the court held, petitioners' claims, filed over nine years post-ELIHPA, were time barred. In holding petitioners' claims untimely, the Federal Circuit rejected the argument pressed by petitioners that the passage of ELIHPA qualified as a repudiation. Were ELIHPA so regarded, petitioners' suit would be timely if filed within six years of either the date performance fell due (the date petitioners tendered prepayment) or the date on which petitioners elected to treat the repudiation as a present breach. "An anticipatory repudiation occurs," the Court of Appeals recognized, "when an obligor communicates to an obligee that he will commit a breach in the future." Id., at 1363 (internal quotation marks omitted). "The doctrine of anticipatory repudiation does not apply in this case," the court reasoned, because after ELIHPA revoked the promise to allow unrestricted prepayment, the Government owed no future performance under the contracts. Id., at 1364. 140 Petitioners' takings claims were time barred for essentially the same reason, the Federal Circuit held. The "property" allegedly taken without just compensation was petitioners' contractual "right to prepay their FmHA loans at any time," id., at 1365; the takings claim thus arose when, upon passage of ELIHPA, the Government "took away and conclusively abolished" the unrestricted prepayment option, id., at 1366.[6] On September 16, 1998, the Grass Valley petitioners, all of whom had entered into § 515 loan agreements before December 21, 1979, joined by other plaintiffs with post-1979 loans, filed an action in the Court of Federal Claims virtually identical to the Franconia action. On April 12, 2000, that court granted the Government's motion to dismiss the Grass Valley petitioners' contract claims for the reasons it had dismissed the claims of the Franconia petitioners. 46 Fed. Cl. 629, 633-635 (2000). The Federal Circuit affirmed without opinion. Judgt. order reported at 7 Fed. Appx. 928 (2001).[7] We granted certiorari, 534 U.S. 1073 (2002), and now reverse the two judgments of the Federal Circuit before us for review. 141 II A A waiver of the sovereign immunity of the United States "cannot be implied but must be unequivocally expressed." United States v. King, 395 U.S. 1, 4 (1969). That requirement is satisfied here. Once the United States waives its immunity and does business with its citizens, it does so much as a party never cloaked with immunity. Cf. Clearfield Trust Co. v. United States, 318 U.S. 363, 369 (1943) ("The United States does business on business terms." (internal quotation marks omitted)). Another threshold matter confines this controversy. For purposes of our disposition, the United States agrees, it may be assumed that petitioners obtained precisely the promise they allegea promise that permits them an unfettered right to prepay their mortgages any time over the life of the loans, thereby gaining release from federal restrictions on the use of their property. See Brief for United States 18-19; Tr. of Oral Arg. 29-30. The sole issue before us is thus cleanly presented: were petitioners' complaints initiated within the six-year limitations period prescribed in 28 U.S. C. § 2501? "When the United States enters into contract relations, its rights and duties therein are governed generally by the law applicable to contracts between private individuals." Mobil Oil Exploration & Producing Southeast, Inc. v. United States, 530 U.S. 604, 607 (2000) (internal quotation marks omitted). Under applicable "principles of general contract law," Priebe & Sons, Inc. v. United States, 332 U.S. 407, 411 (1947), whether petitioners' claims were filed "within six years after [they] first accrue[d]," 28 U.S. C. § 2501, depends upon when the Government breached the prepayment undertaking stated in the promissory notes. See 1 C. Corman, Limitations of Actions § 7.2.1, p. 482 (1991) ("The cause of action for breach of contract accrues, and the statute of limitations begins to run, at the time of the breach." (footnote 142 omitted)); see also 18 W. Jaeger, Williston on Contracts § 2021A, p. 697 (3d ed. 1978) (same). In declaring ELIHPA a present breach of petitioners' loan contracts, the Federal Circuit reasoned that the Government had but one obligation under those agreements: "to continue to allow borrowers the unfettered right to prepay their loans at any time." 240 F.3d, at 1363; see also 43 Fed. Cl., at 710 (Government's contractual duty was "to keep its promise to allow borrowers an unfettered prepayment right"). If that continuing duty was breached, the court maintained, the breach occurred immediately, totally, and definitively when ELIHPA took away the borrowers' unfettered right to prepay. See 240 F.3d, at 1363. The Court of Appeals so ruled despite petitioners' insistence that "the government's performance obligation under the contracts was to accept prepayment" whenever tendered during the long life of the loans, even decades into the future. Id., at 1362 (emphasis added); see also 43 Fed. Cl., at 710. The Federal Circuit, we are persuaded, incorrectly characterized the performance allegedly due from the Government under the promissory notes. If petitioners enjoyed a "right to prepay their loans at any time," 240 F.3d, at 1363, then necessarily the Government had a corresponding obligation to accept prepayment and execute the appropriate releases. See Brief for Petitioners 5-6. Absent an obligation on the lender to accept prepayment, the obligation "to allow" borrowers to prepay would be meaningless. A loan contract of such incomplete design would be illusory. See J. Murray, Contracts § 2, p. 5 (2d rev. ed. 1974) (promise required to create a binding contract must be an "undertaking or commitment to do or refrain from doing [some]thing in the future"). Once the Government's pledged performance is properly comprehended as an obligation to accept prepayment, the error in the Federal Circuit's reasoning becomes apparent. Failure by the promisor to perform at the time indicated for performance in the contract establishes an immediate 143 breach. See Restatement (Second) of Contracts § 235(2) (1979) (hereinafter Restatement) ("When performance of a duty under a contract is due[,] any non-performance is a breach."); Murray, supra, § 206, at 417. But the promisor's renunciation of a "contractual duty before the time fixed in the contract for . . . performance" is a repudiation. 4 A. Corbin, Contracts § 959, p. 855 (1951) (emphasis added); Restatement § 250 (repudiation entails a statement or "voluntary affirmative act" indicating that the promisor "will commit a breach" when performance becomes due). Such a repudiation ripens into a breach prior to the time for performance only if the promisee "elects to treat it as such." See Roehm v. Horst, 178 U.S. 1, 13 (1900) (repudiation "give[s] the promisee the right of electing either to . . . wait till the time for [the promisor's] performance has arrived, or to act upon [the renunciation] and treat it as a final assertion by the promisor that he is no longer bound by the contract"). Viewed in this light, ELIHPA effected a repudiation of the FmHA loan contracts, not an immediate breach. The Act conveyed an announcement by the Government that it would not perform as represented in the promissory notes if and when, at some point in the future, petitioners attempted to prepay their mortgages. See Restatement § 250, Comment b ("[A] statement of intention not to perform except on conditions which go beyond the contract constitutes a repudiation." (internal quotation marks omitted)); Murray, supra, § 208, at 421. Unless petitioners treated ELIHPA as a present breach by filing suit prior to the date indicated for performance, breach would occur when a borrower attempted to prepay, for only at that time would the Government's responsive performance become due.[8] 144 In sum, once it is understood that ELIHPA is most sensibly characterized as a repudiation, the decisions below lose force. To recapitulate, "[t]he time of accrual . . . depends on whether the injured party chooses to treat the . . . repudiation as a present breach." 1 C. Corman, Limitation of Actions § 7.2.1, p. 488 (1991). If that party "[e]lects to place the repudiator in breach before the performance date, the accrual date of the cause of action is accelerated from [the] time of performance to the date of such election." Id., at 488-489. But if the injured party instead opts to await performance, "the cause of action accrues, and the statute of limitations commences to run, from the time fixed for performance rather than from the earlier date of repudiation." Id., at 488. The Government draws no distinction "between a duty to allow petitioners to prepay and a duty to accept tendered prepayments"; "any such distinction," the Government acknowledges, "would be without significance." Brief for United States 33. Indeed, the Government recognizes, if petitioners had an "unfettered right to prepay," then, "of course," that right would be complemented by an "obligation to accept any prepayment tendered." Ibid. In defense of the judgment below, the Government relies on two other grounds. First, the Government draws upon the text of § 2501, which bars any claims not "filed within six years after [the] claim first accrues." The words "first accrues," the Government contends, are key. See id., at 11. Those words, according to the Government, convey Congress' intent to guard the sovereign against claims that might be deemed timely under statutes of limitations applicable to private parties. Id., at 28. As the Government reads § 2501, the "first accrues" qualification ensures that suits against the United States are filed on "the earliest possible date," id., at 17, thereby providing the Government with "reasonably prompt notice of the fiscal implications of past enactments," id., 145 at 16. See ibid. ("[S]trict construction of [§ 2501] . . . serves the salutary purpose of ensuring that a Congress close to the one that enacted the statute [alleged to have caused a breach of contract]rather than a Congress serving perhaps many decades latermay and must address the consequences."); see Tr. of Oral Arg. 45-46. We do not agree that § 2501 creates a special accrual rule for suits against the United States. Contrary to the Government's contention, the text of § 2501 is unexceptional: A number of contemporaneous state statutes of limitations applicable to suits between private parties also tie the commencement of the limitations period to the date a claim "first accrues." See J. Angell, Limitations of Actions 536-588 (6th ed. 1876) (quoting state statutes of limitations). Equally telling, in its many years of applying and interpreting § 2501, the Court of Federal Claims has never attributed to the words "first accrues" the meaning the Government now proposes. Instead, in other settings, that court has adopted the repudiation doctrine in its traditional form when evaluating the timeliness of suits governed by § 2501. See Plaintiffs in Winstar-Related Cases v. United States, 37 Fed. Cl. 174, 183-184 (1997), aff'd sub nom. Ariadne Financial Services Pty. Ltd. v. United States, 133 F.3d 874 (CA Fed. 1998). In line with our recognition that limitations principles should generally apply to the Government "in the same way that" they apply to private parties, Irwin v. Department of Veterans Affairs, 498 U.S. 89, 95 (1990), we reject the Government's proposed construction of § 2501. That position, we conclude, presents an "unduly restrictiv[e]" reading of the congressional waiver of sovereign immunity, Bowen v. City of New York, 476 U.S. 467, 479 (1986), rather than "a realistic assessment of legislative intent," Irwin, 498 U. S., at 95.[9] 146 Two practical considerations reinforce this conclusion. Cf. Crown Coat Front Co. v. United States, 386 U.S. 503, 517 (1967) (the words "first accrues" must be interpreted "with due regard to those practical ends which are to be served by any limitation of the time within which an action must be brought" (internal quotation marks omitted)). Reading § 2501 as the Government proposes would seriously distort the repudiation doctrine in suits brought under the Tucker Act. Assuming a claim could "first accrue" for limitations purposes on the date of repudiation, but see supra, at 144, a party aggrieved by the Government's renunciation of a contractual obligation anticipating future performance would be compelled by the looming limitations bar to forgo the usual option of awaiting the time performance is due before filing an action for breach. The Government's construction of § 2501 would thus convert the repudiation doctrine from a shield for the promisee into a sword by which the Government could invoke its own wrongdoing to defeat otherwise timely suits. As Professor Corbin explained, "[t]he plaintiff should not be penalized for leaving to the defendant an opportunity to retract his wrongful repudiation; and he would be so penalized if the statutory period of limitation is held to begin to run against him immediately." Corbin, Contracts § 989, at 967; see Roehm v. Horst, 178 U. S., at 10 ("[I]t seems reasonable to allow an option to the injured party, either to sue immediately, or to wait till the time when the act was to be done, . . . which may be advantageous to the innocent party."). There is also reason to doubt that the Government's reading of § 2501 would inure to the benefit of the United States. Putting prospective plaintiffs to the choice of either bringing suit soon after the Government's repudiation or forever relinquishing their claims would surely proliferate litigation. 147 Every borrower of FmHA loans, for example, would be forced to sue the Government within six years of ELIHPA's enactment in order to preserve a claim stemming from that Act. Faced with the prospect of forever forgoing such a claim, even a borrower that had not previously wished to prepay might well conclude that early exit from the FmHA program is the only safe course. The Government would thus find itself defending against highly speculative damages claims in a profusion of lawsuits, most of which would never have been brought under a less novel interpretation of § 2501. See Tr. of Oral Arg. 33-34.[10] The Government also seeks to avoid the repudiation doctrine by attacking as "futile" petitioners' "search for an exact parallel in contracts solely between private parties." Brief for United States 13. The law of repudiation does not govern here, the Government ultimately contends, because the "statement of intent not to perform" on which petitioners base their claim is an Act of Congress. Id., at 24. According to the Government, a congressional enactment like ELIHPA that precludes the Government from honoring a contractual obligation anticipating future performance always constitutes a present breach. This is so, the Government maintains, because "the promisor"the agency or official responsible for administering the contractdoes not 148 "remai[n] free to change its mind and render the requisite performance" without violating binding federal law. Id., at 27. Accordingly, the Government concludes, the essential purpose of the repudiation doctrineto avoid an unnecessary lawsuit by allowing the promisor an opportunity to adhere to its undertakingis inapplicable. We reject the Government's premise, and therefore its conclusion. Just as Congress may announce the Government's intent to dishonor an obligation to perform in the future through a duly enacted law, so may it retract that renouncement prior to the time for performance, thereby enabling the agency or contracting official to perform as promised. Indeed, Congress "change[d] its mind" in just this manner before it enacted ELIHPA. Ibid. In the 1979 amendments to the National Housing Act, Congress repudiated the promissory notes at issue here by conditioning prepayment of all § 515 loans on the borrower's agreement to maintain the low-income use of its property for a specified period. See Housing and Community Development Amendments of 1979, 93 Stat. 1134-1135. One year later, Congress removed those conditions on pre-1979 loans, thereby retracting the repudiation. See Housing and Community Development Act of 1980, 94 Stat. 1671-1672; supra, at 135. We comprehend no reason why an Act of Congress may not constitute a repudiation of a contract to which the United States is a party. Congress may renounce the Government's contractual duties without triggering an immediate breach because Congress may withdraw that repudiation if given the opportunity to do so. "Hence, . . . the fact that [the Government's] repudiation rested upon the enactment of a new statute makes no significant difference." Mobil Oil, 530 U. S., at 620; see id., at 619 ("[I]f legislation passed by Congress and signed by the President is not a `statement by the obligor' " capable of triggering a repudiation, "it is difficult to imagine what would constitute such a statement." (quoting Restatement § 250)). 149 B To answer the question presentedwhen does the statute of limitations on petitioners' claims begin to run, see Pet. for Cert. iwe need not separately address petitioners' alternative theory of recovery based on the Takings Clause of the Fifth Amendment. The Federal Circuit's holding that takings relief was time barred hinged entirely on its conclusion that petitioners' contract claims accrued upon passage of ELIHPA. See 240 F.3d, at 1365-1366. Because that conclusion was incorrect, we hold, the Federal Circuit erred in dismissing petitioners' takings theory on grounds of untimeliness. * * Concluding that each petitioner's claim is timely if filed within six years of a wrongly rejected tender of prepayment, we reverse the judgments of the Federal Circuit and remand the Franconia and Grass Valley cases reviewed herein for further proceedings consistent with this opinion. It is so ordered.	The two cases consolidated for our review concern the timeliness of claims filed against the United States under the Tucker Act, 28 U.S. C. 191. Petitioners are property owners who participated in a federal program to promote development of affordable rental housing in areas not traditionally served by conventional lenders. In exchange for low-interest mortgage loans issued by the Farmers Home Administration (FmHA), petitioners agreed to devote their 3 properties to low- and middle-income housing and to abide by related restrictions during the life of the loans. Petitioners allege that the promissory notes governing their loans guaranteed the borrower the right to prepay at any time and thereby gain release from the federal program and the restrictions it places on the use of a participating owner's property. In the suits that yielded the judgments before us, petitioners charged that Congress abridged that release right in the Emergency Low Income Housing Preservation Act of 1987 (ELIHPA or Act), as amended, 2 U.S. C. 172(c) (199 ed. and Supp. V). That Act placed permanent restraints upon prepayment of FmHA loans. Petitioners asserted in their complaints that ELIHPA effected both a repudiation of their contracts and a taking of their property in violation of the Fifth Amendment. The Federal Circuit held petitioners' claims time barred under 28 U.S. C. 2501, which prescribes that all Tucker Act claims must be filed within six years of the date they "first accrue[d]." In the Federal Circuit's view, passage of ELIHPA constituted an immediate breach of the FmHA loan agreements and therefore triggered the running of the limitations period. Petitioners filed suit not "within six years of," but over nine years after, ELIHPA's enactment. On that account, the Federal Circuit held their claims untimely, and their suits properly dismissed. Accepting for purposes of this decision that the loan contracts guaranteed the absolute prepayment right petitioners allege, we reverse the Federal Circuit's judgment. ELIHPA's enactment, we conclude, qualified as a repudiation of the parties' bargain, not a present breach of the loan agreements. Accordingly, breach would occur, and the sixyear limitations period would commence to run, when a borrower tenders prepayment and the Government then dishonors its obligation to accept the tender and release its control over use of the property that secured the loan. I A Under 515 and 521 of the Housing Act of 199, as amended, 2 U.S. C. 185, 190a, the FmHA makes direct loans to private, nonprofit entities to develop or construct rural housing designed to serve the elderly and low- or middle-income individuals and families.[1] Section 515 loans require the borrower, inter alia, to execute various loan documents, including a loan agreement, a promissory note, and a real estate mortgage. Before December 21, 1979, each petitioner entered into a loan agreement with the FmHA under 515 and 521 "to provide rental housing and related facilities for eligible occupants in rural areas." App. to Pet. for Cert. A165. In the loan agreements, each petitioner certified that it was unable to obtain a comparable loan in the commercial market. See at A177. The loan agreements contained various provisions designed to ensure that the projects were affordable for people with low incomes. Those provisions included restrictions as to eligible tenants, the rents petitioners could charge, and the rate of return petitioners could realize, as well as requirements regarding the maintenance and financial operations of each project. See at A170A17. Each loan agreement specified the length of the loan, ordinarily 0 or 50 years. The promissory notes executed by petitioners required payment of the principal on each mortgage in scheduled installments, plus interest. See at A176A177. The 5 notes contained the prepayment provision curtailed by the legislation involved in the litigation now before us. That provision read: "Prepayments of scheduled installments, or any portion thereof, may be made at any time at the option of Borrower." at A176. No other provision of the loan documents addressed prepayment. In 1979, Congress found that many 515 participants had prepaid their mortgages, thus threatening the continued availability of affordable rural housing. Concerned that "these projects [remain] available to low and moderate income families for the entire original term of the loan," H. R. Rep. No. 96-15, p. 3 (1979), Congress amended the National Housing Act to stem the loss of low-cost rural housing due to prepayments, see Housing and Community Development Amendments of 1979, In these 1979 amendments, Congress prohibited the FmHA from accepting prepayment of any loan made before or after the date of enactment unless the owner agreed to maintain the lowincome use of the rental housing for a 15-year or 20-year period from the date of the loan. -15. That requirement could be avoided if the FmHA determined that there was no longer a need for the low-cost housing. The 1979 amendments applied to all program loans, past, present, and future. In 1980, however, Congress further amended the National Housing Act to eliminate retroactive application of the 515 prepayment limitations imposed by the 1979 legislation. The Housing and Community Development Act of 1980, provided that the prepayment restrictions would apply only to loans entered into after December 21, 1979, the date that amendment was enacted. 51, -1672. The 1980 Act required the Secretary of Agriculture to inform Congress of the repeal's adverse effects, if any, on the availability of low-income housing. 6 By 1987, Congress had again become concerned about the dwindling supply of low- and moderate-income rural housing in the face of increasing prepayments of mortgages under 515.[2] A House of Representatives Committee found that owners were "prepay[ing] or refinanc[ing] their FmHA loans, without regard to the low income and elderly tenants in these projects." H. R. Rep. No. 100-122, p. 53. Responsive to that concern, Congress passed ELIHPA, which amended the Housing Act of 199 to impose permanent restrictions upon prepayment of 515 mortgages entered into before December 21, 1979. This legislation, enacted on February 5, 1988, provides that before FmHA can accept an offer to prepay such a mortgage, "the [FmHA] shall make reasonable efforts to enter into an agreement with the borrower under which the borrower will make a binding commitment to extend the low income use of the assisted housing and related facilities involved for not less than the 20-year period beginning on the date on which the agreement is executed." 2 U.S. C. 172(c)()(A) (199 ed.). The legislation further provides that the FmHA may include incentives in such an agreement, including an increase in the rate of return on investment, reduction of the interest rate on the loan, and an additional loan to the borrower. 172(c)()(B) (199 ed. and Supp. V). Under ELIHPA, if the FmHA determines after a "reasonable period" that an agreement cannot be reached, the owner who sought to prepay must offer to sell the housing to "any qualified nonprofit organization or public agency at a fair market value determined by 2 independent appraisers." 172(c)(5)(A)(i) (199 ed.). If an offer to buy is not 7 made by a nonprofit organization or agency within 180 days, the FmHA may accept the owner's offer to prepay. 172(c)(5)(A)(ii). The offer-for-sale requirement may be avoided if the FmHA determines that prepayment will not "materially affec[t]" housing opportunities for minorities and one of two other conditions is met: Prepayment will not displace the tenants of the affected housing, or there is "an adequate supply of safe, decent, and affordable rental housing within the market area" and "sufficient actions have been taken to ensure" that such housing "will be made available" to displaced tenants. 172(c)(5)(G)(ii). ELIHPA's implementing regulations establish a process by which the FmHA addresses prepayment requests. Under those procedures, the FmHA first "develo[ps] an incentive offer," making a "reasonable effort to enter into an agreement with the borrower to maintain the housing for low-income use that takes into consideration the economic loss the borrower may suffer by foregoing [sic] prepayment." 7 CFR 1965.210 Only if the borrower rejects that offer will the FmHA attempt to make the determinationsregarding the effect on minority housing opportunities, the displacement of tenants, and the supply of affordable housing in the marketrequired by 2 U.S. C. 172(c)(5)(G) before prepayment can be accepted. 7 CFR 1965.215(a)[3] B Petitioners in Franconia filed this action in the United States Court of Federal Claims on May 30, Plaintiffs included petitionersall of whom had entered into loan agreements before December 21, 1979, and were therefore 8 subject to ELIHPAand others, who had entered into loan agreements after December 21, 1979, and were therefore unaffected by the Act. See App. to Pet. for Cert. A3, n. 2.[] Petitioners alleged that ELIHPA repudiated their loan contracts, which, they asserted, gave them the right "to terminate their participation in the Government's housing program by exercising their option to prepay at any time." at A112. Their complaint sought relief on two theories: breach of contract and a violation of the Fifth Amendment's proscription against taking property without just compensation. See at A2A3. The Court of Federal Claims granted the Government's motion to dismiss petitioners' contract claims as barred by the six-year statute of limitations in 28 U.S. C. 2501. That provision states: "Every 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." The court concluded that petitioners' contract claims first accrued on May 23, 1988, the effective date of regulations implementing ELIHPA. That was so, the court said, because those regulations breached the only performance required of the Government under the promissory notes: "to keep its promise to allow borrowers an unfettered prepayment right." The court dismissed petitioners' takings claims sua sponte; because "the [Government] conduct alleged to have constituted a taking" was "Congress's change of the prepayment option," the court reasoned, any claim based on that conduct "accrued at the time of the 1988 legislation." The Federal Circuit affirmed the dismissal of petitioners' claims on timeliness grounds. The 9 Court of Appeals agreed with the Court of Federal Claims on the respective benefits and burdens generated by the promissory notes: Petitioners enjoyed "an unfettered right to prepay their loans at any time," while the Government had an obligation "to continue to allow borrowers" that option, If the Government's "continuing duty was breached," the court concluded, "the breach occurred immediately upon enactment of ELIHPA because, by its terms, ELIHPA took away the borrowers' unfettered right of prepayment." Thus, the court ruled, the statute of limitations began to run on February 5, 1988, the date of ELIHPA's passage, see ;[5] given that limitationstriggering date, the court held, petitioners' claims, filed over nine years post-ELIHPA, were time barred. In holding petitioners' claims untimely, the Federal Circuit rejected the argument pressed by petitioners that the passage of ELIHPA qualified as a repudiation. Were ELIHPA so regarded, petitioners' suit would be timely if filed within six years of either the date performance fell due (the date petitioners tendered prepayment) or the date on which petitioners elected to treat the repudiation as a present breach. "An anticipatory repudiation occurs," the Court of Appeals recognized, "when an obligor communicates to an obligee that he will commit a breach in the future." "The doctrine of anticipatory repudiation does not apply in this case," the court reasoned, because after ELIHPA revoked the promise to allow unrestricted prepayment, the Government owed no future performance under the contracts. 10 Petitioners' takings claims were time barred for essentially the same reason, the Federal Circuit held. The "property" allegedly taken without just compensation was petitioners' contractual "right to prepay their FmHA loans at any time," ; the takings claim thus arose when, upon passage of ELIHPA, the Government "took away and conclusively abolished" the unrestricted prepayment option,[6] On September 16, the Grass Valley petitioners, all of whom had entered into 515 loan agreements before December 21, 1979, joined by other plaintiffs with post-1979 loans, filed an action in the Court of Federal Claims virtually identical to the Franconia action. On April 12, that court granted the Government's motion to dismiss the Grass Valley petitioners' contract claims for the reasons it had dismissed the claims of the Franconia petitioners. The Federal Circuit affirmed without opinion. Judgt. order reported at[7] We granted certiorari, and now reverse the two judgments of the Federal Circuit before us for review. 11 II A A waiver of the sovereign immunity of the United States "cannot be implied but must be unequivocally expressed." United That requirement is satisfied here. Once the United States waives its immunity and does business with its citizens, it does so much as a party never cloaked with immunity. Cf. Clearfield Trust (193) ("The United States does business on business terms." ). Another threshold matter confines this controversy. For purposes of our disposition, the United States agrees, it may be assumed that petitioners obtained precisely the promise they allegea promise that permits them an unfettered right to prepay their mortgages any time over the life of the loans, thereby gaining release from federal restrictions on the use of their property. See Brief for United States 18-19; Tr. of Oral Arg. 29-30. The sole issue before us is thus cleanly presented: were petitioners' complaints initiated within the six-year limitations period prescribed in 28 U.S. C. 2501? "When the United States enters into contract relations, its rights and duties therein are governed generally by the law applicable to contracts between private individuals." Mobil Exploration & Producing Southeast, 530 U.S. 60, Under applicable "principles of general contract law," Priebe & Sons, 332 U.S. 07, 11 (197), whether petitioners' claims were filed "within six years after [they] first accrue[d]," 28 U.S. C. 2501, depends upon when the Government breached the prepayment undertaking stated in the promissory notes. See 1 C. Corman, Limitations of Actions 7.2.1, p. 82 (1991) ("The cause of action for breach of contract accrues, and the statute of limitations begins to run, at the time of the breach." (footnote 12 omitted)); see 18 W. Jaeger, Williston on Contracts 2021A, p. 697 (3d ed. 1978) (same). In declaring ELIHPA a present breach of petitioners' loan contracts, the Federal Circuit reasoned that the Government had but one obligation under those agreements: "to continue to allow borrowers the unfettered right to prepay their loans at any time." 20 F.3d, ; see 3 Fed. Cl., If that continuing duty was breached, the court maintained, the breach occurred immediately, totally, and definitively when ELIHPA took away the borrowers' unfettered right to prepay. See 20 F.3d, The Court of Appeals so ruled despite petitioners' insistence that "the government's performance obligation under the contracts was to accept prepayment" whenever tendered during the long life of the loans, even decades into the future. ; see 3 Fed. Cl., The Federal Circuit, we are persuaded, incorrectly characterized the performance allegedly due from the Government under the promissory notes. If petitioners enjoyed a "right to prepay their loans at any time," 20 F.3d, then necessarily the Government had a corresponding obligation to accept prepayment and execute the appropriate releases. See Brief for Petitioners 5-6. Absent an obligation on the lender to accept prepayment, the obligation "to allow" borrowers to prepay would be meaningless. A loan contract of such incomplete design would be illusory. See J. Contracts 2, p. 5 (2d rev. ed. 197) (promise required to create a binding contract must be an "undertaking or commitment to do or refrain from doing [some]thing in the future"). Once the Government's pledged performance is properly comprehended as an obligation to accept prepayment, the error in the Federal Circuit's reasoning becomes apparent. Failure by the promisor to perform at the time indicated for performance in the contract establishes an immediate * breach. See Restatement (Second) of Contracts 235(2) (1979) (hereinafter Restatement) ("When performance of a duty under a contract is due[,] any non-performance is a breach."); 206, But the promisor's renunciation of a "contractual duty before the time fixed in the contract for performance" is a repudiation. A. Corbin, Contracts 9, p. 855 (11) ; Restatement 250 (repudiation entails a statement or "voluntary affirmative act" indicating that the promisor "will commit a breach" when performance becomes due). Such a repudiation ripens into a breach prior to the time for performance only if the promisee "elects to treat it as such." See Viewed in this light, ELIHPA effected a repudiation of the FmHA loan contracts, not an immediate breach. The Act conveyed an announcement by the Government that it would not perform as represented in the promissory notes if and when, at some point in the future, petitioners attempted to prepay their mortgages. See Restatement 250, Comment b ("[A] statement of intention not to perform except on conditions which go beyond the contract constitutes a repudiation." ); 208, at 21. Unless petitioners treated ELIHPA as a present breach by filing suit prior to the date indicated for performance, breach would occur when a borrower attempted to prepay, for only at that time would the Government's responsive performance become due.[8] 1 In sum, once it is understood that ELIHPA is most sensibly characterized as a repudiation, the decisions below lose force. To recapitulate, "[t]he time of accrual depends on whether the injured party chooses to treat the repudiation as a present breach." 1 C. Corman, Limitation of Actions 7.2.1, p. 88 (1991). If that party "[e]lects to place the repudiator in breach before the performance date, the accrual date of the cause of action is accelerated from [the] time of performance to the date of such election." at 88-89. But if the injured party instead opts to await performance, "the cause of action accrues, and the statute of limitations commences to run, from the time fixed for performance rather than from the earlier date of repudiation." at 88. The Government draws no distinction "between a duty to allow petitioners to prepay and a duty to accept tendered prepayments"; "any such distinction," the Government acknowledges, "would be without significance." Brief for United States 33. Indeed, the Government recognizes, if petitioners had an "unfettered right to prepay," then, "of course," that right would be complemented by an "obligation to accept any prepayment tendered." In defense of the judgment below, the Government relies on two other grounds. First, the Government draws upon the text of 2501, which bars any claims not "filed within six years after [the] claim first accrues." The words "first accrues," the Government contends, are key. See Those words, according to the Government, convey Congress' intent to guard the sovereign against claims that might be deemed timely under statutes of limitations applicable to private parties. As the Government reads 2501, the "first accrues" qualification ensures that suits against the United States are filed on "the earliest possible date," thereby providing the Government with "reasonably prompt notice of the fiscal implications of past enactments," 15 at 16. See ("[S]trict construction of [ 2501] serves the salutary purpose of ensuring that a Congress close to the one that enacted the statute [alleged to have caused a breach of contract]rather than a Congress serving perhaps many decades latermay and must address the consequences."); see Tr. of Oral Arg. 5-6. We do not agree that 2501 creates a special accrual rule for suits against the United States. Contrary to the Government's contention, the text of 2501 is unexceptional: A number of contemporaneous state statutes of limitations applicable to suits between private parties tie the commencement of the limitations period to the date a claim "first accrues." See J. Angell, Limitations of Actions 536-588 (6th ed. 1876) (quoting state statutes of limitations). Equally telling, in its many years of applying and interpreting 2501, the Court of Federal Claims has never attributed to the words "first accrues" the meaning the Government now proposes. Instead, in other settings, that court has adopted the repudiation doctrine in its traditional form when evaluating the timeliness of suits governed by 2501. See Plaintiffs in Winstar-Related 37 Fed. Cl. 17, 183-18 aff'd sub nom. Ariadne Financial Services Pty. 3 F.3d 87 In line with our recognition that limitations principles should generally apply to the Government "in the same way that" they apply to private parties, 98 U.S. 89, we reject the Government's proposed construction of 2501. That position, we conclude, presents an "unduly restrictiv[e]" reading of the congressional waiver of sovereign immunity, 76 U.S. 67, 79 rather than "a realistic assessment of legislative intent," 98 U. S., at[9] 16 Two practical considerations reinforce this conclusion. Cf. Crown Coat Front (the words "first accrues" must be interpreted "with due regard to those practical ends which are to be served by any limitation of the time within which an action must be brought" ). Reading 2501 as the Government proposes would seriously distort the repudiation doctrine in suits brought under the Tucker Act. Assuming a claim could "first accrue" for limitations purposes on the date of repudiation, but see at 1, a party aggrieved by the Government's renunciation of a contractual obligation anticipating future performance would be compelled by the looming limitations bar to forgo the usual option of awaiting the time performance is due before filing an action for breach. The Government's construction of 2501 would thus convert the repudiation doctrine from a shield for the promisee into a sword by which the Government could invoke its own wrongdoing to defeat otherwise timely suits. As Professor Corbin explained, "[t]he plaintiff should not be penalized for leaving to the defendant an opportunity to retract his wrongful repudiation; and he would be so penalized if the statutory period of limitation is held to begin to run against him immediately." Corbin, Contracts 989, at 967; see There is reason to doubt that the Government's reading of 2501 would inure to the benefit of the United States. Putting prospective plaintiffs to the choice of either bringing suit soon after the Government's repudiation or forever relinquishing their claims would surely proliferate litigation. 17 Every borrower of FmHA loans, for example, would be forced to sue the Government within six years of ELIHPA's enactment in order to preserve a claim stemming from that Act. Faced with the prospect of forever forgoing such a claim, even a borrower that had not previously wished to prepay might well conclude that early exit from the FmHA program is the only safe course. The Government would thus find itself defending against highly speculative damages claims in a profusion of lawsuits, most of which would never have been brought under a less novel interpretation of 2501. See Tr. of Oral Arg. 33-3.[10] The Government seeks to avoid the repudiation doctrine by attacking as "futile" petitioners' "search for an exact parallel in contracts solely between private parties." Brief for United States The law of repudiation does not govern here, the Government ultimately contends, because the "statement of intent not to perform" on which petitioners base their claim is an Act of Congress. at 2. According to the Government, a congressional enactment like ELIHPA that precludes the Government from honoring a contractual obligation anticipating future performance always constitutes a present breach. This is so, the Government maintains, because "the promisor"the agency or official responsible for administering the contractdoes not 18 "remai[n] free to change its mind and render the requisite performance" without violating binding federal law. Accordingly, the Government concludes, the essential purpose of the repudiation doctrineto avoid an unnecessary lawsuit by allowing the promisor an opportunity to adhere to its undertakingis inapplicable. We reject the Government's premise, and therefore its conclusion. Just as Congress may announce the Government's intent to dishonor an obligation to perform in the future through a duly enacted law, so may it retract that renouncement prior to the time for performance, thereby enabling the agency or contracting official to perform as promised. Indeed, Congress "change[d] its mind" in just this manner before it enacted ELIHPA. In the 1979 amendments to the National Housing Act, Congress repudiated the promissory notes at issue here by conditioning prepayment of all 515 loans on the borrower's agreement to maintain the low-income use of its property for a specified period. See Housing and Community Development Amendments of 1979, -15. One year later, Congress removed those conditions on pre-1979 loans, thereby retracting the repudiation. See Housing and Community Development Act of 1980, -1672; at 5. We comprehend no reason why an Act of Congress may not constitute a repudiation of a contract to which the United States is a party. Congress may renounce the Government's contractual duties without triggering an immediate breach because Congress may withdraw that repudiation if given the opportunity to do so. "Hence, the fact that [the Government's] repudiation rested upon the enactment of a new statute makes no significant difference." Mobil ; see ("[I]f legislation passed by Congress and signed by the President is not a `statement by the obligor' " capable of triggering a repudiation, "it is difficult to imagine what would constitute such a statement." (quoting Restatement 250)). 19 B To answer the question presentedwhen does the statute of limitations on petitioners' claims begin to run, see Pet. for Cert. iwe need not separately address petitioners' alternative theory of recovery based on the Takings Clause of the Fifth Amendment. The Federal Circuit's holding that takings relief was time barred hinged entirely on its conclusion that petitioners' contract claims accrued upon passage of ELIHPA. See 20 F.3d, -66. Because that conclusion was incorrect, we hold, the Federal Circuit erred in dismissing petitioners' takings theory on grounds of untimeliness. * * * Concluding that each petitioner's claim is timely if filed within six years of a wrongly rejected tender of prepayment, we reverse the judgments of the Federal Circuit and remand the Franconia and Grass Valley cases reviewed herein for further proceedings consistent with this opinion. It is so ordered.	2,073
Justice Alito	majority	false	Gamble v. United States	2019-06-17	null	https://www.courtlistener.com/opinion/4630088/gamble-v-united-states/	https://www.courtlistener.com/api/rest/v3/clusters/4630088/	2,019	null	null	null	null	We consider in this case whether to overrule a longstanding interpretation of the Double Jeopardy Clause of the Fifth Amendment. That Clause provides that no person may be “twice put in jeopardy” “for the same of- fence.” Our double jeopardy case law is complex, but at its core, the Clause means that those acquitted or convicted of a particular “offence” cannot be tried a second time for the same “offence.” But what does the Clause mean by an “offence”? We have long held that a crime under one sovereign’s laws is not “the same offence” as a crime under the laws of another sovereign. Under this “dual-sovereignty” doc- trine, a State may prosecute a defendant under state law even if the Federal Government has prosecuted him for the same conduct under a federal statute. Or the reverse may happen, as it did here. Terance Gamble, convicted by Alabama for possessing a firearm as a felon, now faces prosecution by the United States under its own felon-in-possession law. Attacking this second prosecution on double jeopardy grounds, Gamble asks us 2 GAMBLE v. UNITED STATES Opinion of the Court to overrule the dual-sovereignty doctrine. He contends that it departs from the founding-era understanding of the right enshrined by the Double Jeopardy Clause. But the historical evidence assembled by Gamble is feeble; point- ing the other way are the Clause’s text, other historical evidence, and 170 years of precedent. Today we affirm that precedent, and with it the decision below. I In November 2015, a local police officer in Mobile, Ala- bama, pulled Gamble over for a damaged headlight. Smelling marijuana, the officer searched Gamble’s car, where he found a loaded 9-mm handgun. Since Gamble had been convicted of second-degree robbery, his posses- sion of the handgun violated an Alabama law providing that no one convicted of “a crime of violence” “shall own a firearm or have one in his or her possession.” Ala. Code §13A–11–72(a) (2015); see §13A–11–70(2) (defining “crime of violence” to include robbery). After Gamble pleaded guilty to this state offense, federal prosecutors indicted him for the same instance of possession under a federal law—one forbidding those convicted of “a crime punishable by imprisonment for a term exceeding one year . . . to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition.” 18 U.S. C. §922(g)(1). Gamble moved to dismiss on one ground: The federal indictment was for “the same offence” as the one at issue in his state conviction and thus exposed him to double jeopardy. But because this Court has long held that two offenses “are not the ‘same offence’ ” for double jeopardy purposes if “prosecuted by different sovereigns,” Heath v. Alabama, 474 U.S. 82, 92 (1985), the District Court de- nied Gamble’s motion to dismiss. Gamble then pleaded guilty to the federal offense while preserving his right to challenge the denial of his motion to dismiss on double Cite as: 587 U. S. ____ (2019) 3 Opinion of the Court jeopardy grounds. But on appeal the Eleventh Circuit affirmed, citing the dual-sovereignty doctrine. 694 Fed. Appx. 750 (2017). We granted certiorari to determine whether to overturn that doctrine.1 585 U. S. ___ (2018). II Gamble contends that the Double Jeopardy Clause must forbid successive prosecutions by different sovereigns because that is what the founding-era common law did. But before turning to that historical claim, see Part III infra, we review the Clause’s text and some of the cases Gamble asks us to overturn. A We start with the text of the Fifth Amendment. Al- though the dual-sovereignty rule is often dubbed an “excep- tion” to the double jeopardy right, it is not an exception at all. On the contrary, it follows from the text that defines that right in the first place. “[T]he language of the Clause . . . protects individuals from being twice put in jeopardy ‘for the same offence,’ not for the same conduct or actions,” Grady v. Corbin, 495 U.S. 508, 529 (1990), as Justice Scalia wrote in a soon-vindicated dissent, see United States v. Dixon, 509 U.S. 688 (1993) (overruling Grady). And the term “ ‘[o]ffence’ was commonly understood in 1791 to mean ‘transgression,’ that is, ‘the Violation or Breaking of a Law.’ ” Grady, 495 U.S., at 529 (Scalia, J., dissenting) (quoting Dictionarium Britannicum (Bailey ed. 1730)). See also 2 R. Burn & J. Burn, A New Law Diction- ary 167 (1792) (“OFFENCE, is an act committed against law, or omitted where the law requires it”). As originally —————— 1 In addressing that question, we follow the parties’ lead and assume, without deciding, that the state and federal offenses at issue here satisfy the other criteria for being the “same offence” under our double jeopardy precedent. See Blockburger v. United States, 284 U.S. 299, 304 (1932). 4 GAMBLE v. UNITED STATES Opinion of the Court understood, then, an “offence” is defined by a law, and each law is defined by a sovereign. So where there are two sovereigns, there are two laws, and two “offences.” See Grady, 495 U.S., at 529 (Scalia, J., dissenting) (“If the same conduct violates two (or more) laws, then each of- fense may be separately prosecuted”); Moore v. Illinois, 14 How. 13, 17 (1852) (“The constitutional provision is not, that no person shall be subject, for the same act, to be twice put in jeopardy of life or limb; but for the same offence, the same violation of law, no person’s life or limb shall be twice put in jeopardy” (emphasis added)). Faced with this reading, Gamble falls back on an epi- sode from the Double Jeopardy Clause’s drafting history.2 The first Congress, working on an earlier draft that would have banned “ ‘more than one trial or one punishment for the same offence,’ ” voted down a proposal to add “ ‘by any law of the United States.’ ” 1 Annals of Cong. 753 (1789). In rejecting this addition, Gamble surmises, Congress must have intended to bar successive prosecutions regard- less of the sovereign bringing the charge. Even if that inference were justified—something that the Government disputes—it would count for little. The private intent behind a drafter’s rejection of one version of a text is shoddy evidence of the public meaning of an altogether different text. Cf. United States v. Craft, 535 —————— 2 Gamble also cites founding-era uses of the word “offence” that are not tied to violations of a sovereign’s laws, but the examples are not very telling. Some, for instance, play on the unremarkable fact that at the founding, “offence” could take on a different sense in nonlegal settings, much as “offense” does today. In this vein, Gamble cites a 19th-century dictionary defining “offense” broadly as “any transgres- sion of law, divine or human; a crime; sin; act of wickedness or omission of duty.” 2 N. Webster, An American Dictionary of the English Lan- guage (1828). But the question is what “offence” meant in legal con- texts. See Moore v. Illinois, 14 How. 13, 19 (1852) (“An offence, in its legal signification, means the transgression of a law. . .” (emphasis added)). Cite as: 587 U. S. ____ (2019) 5 Opinion of the Court U. S. 274, 287 (2002) (“[F]ailed legislative proposals are a particularly dangerous ground on which to rest an inter- pretation of a prior statute” (internal quotation marks omitted)). Besides, if we allowed conjectures about purpose to inform our reading of the text, the Government’s conjec- ture would prevail. The Government notes that the Decla- ration of Independence denounced King George III for “protecting [British troops] by a mock Trial, from punish- ment for any Murders which they should commit on the Inhabitants of these States.” ¶ 17. The Declaration was alluding to “the so-called Murderers’ Act, passed by Par- liament after the Boston Massacre,” Amar, Sixth Amend- ment First Principles, 84 Geo. L. J. 641, 687, n. 181 (1996), a law that allowed British officials indicted for murder in America to be “ ‘tried in England, beyond the control of local juries.’ ” Ibid. (quoting J. Blum et al., The National Experience 95 (3d ed. 1973)). “During the late colonial period, Americans strongly objected to . . . [t]his circum- vention of the judgment of the victimized community.” Amar, 84 Geo. L. Rev., at 687, n. 181. Yet on Gamble’s reading, the same Founders who quite literally revolted against the use of acquittals abroad to bar criminal prose- cutions here would soon give us an Amendment allow- ing foreign acquittals to spare domestic criminals. We doubt it. We see no reason to abandon the sovereign-specific reading of the phrase “same offence,” from which the dual- sovereignty rule immediately follows. B Our cases reflect the same reading. A close look at them reveals how fidelity to the Double Jeopardy Clause’s text does more than honor the formal difference between two distinct criminal codes. It honors the substantive differ- ences between the interests that two sovereigns can have 6 GAMBLE v. UNITED STATES Opinion of the Court in punishing the same act. The question of successive federal and state prosecu- tions arose in three antebellum cases implying and then spelling out the dual-sovereignty doctrine. The first, Fox v. Ohio, 5 How. 410 (1847), involved an Ohio prosecution for the passing of counterfeit coins. The defendant argued that since Congress can punish counterfeiting, the States must be barred from doing so, or else a person could face two trials for the same offense, contrary to the Fifth Amendment. We rejected the defendant’s premise that under the Double Jeopardy Clause “offences falling within the competency of different authorities to restrain or punish them would not properly be subjected to the conse- quences which those authorities might ordain and affix to their perpetration.” Id., at 435. Indeed, we observed, the nature of the crime or its effects on “public safety” might well “deman[d]” separate prosecutions. Ibid. Generalizing from this point, we declared in a second case that “the same act might, as to its character and tendencies, and the consequences it involved, constitute an offence against both the State and Federal governments, and might draw to its commission the penalties denounced by either, as appropriate to its character in reference to each.” United States v. Marigold, 9 How. 560, 569 (1850). A third antebellum case, Moore v. Illinois, 14 How. 13, expanded on this concern for the different interests of separate sovereigns, after tracing it to the text in the manner set forth above. Recalling that the Fifth Amend- ment prohibits double jeopardy not “for the same ac[t]” but “for the same offence,” and that “[a]n offence, in its legal signification, means the transgression of a law,” id., at 19, we drew the now-familiar inference: A single act “may be an offence or transgression of the laws of ” two sovereigns, and hence punishable by both, id., at 20. Then we gave color to this abstract principle—and to the diverse inter- ests it might vindicate—with an example. An assault on a Cite as: 587 U. S. ____ (2019) 7 Opinion of the Court United States marshal, we said, would offend against the Nation and a State: the first by “hindering” the “execution of legal process,” and the second by “breach[ing]” the “peace of the State.” Ibid. That duality of harm explains how “one act” could constitute “two offences, for each of which [the offender] is justly punishable.” Ibid. This principle comes into still sharper relief when we consider a prosecution in this country for crimes commit- ted abroad. If, as Gamble suggests, only one sovereign may prosecute for a single act, no American court—state or federal—could prosecute conduct already tried in a foreign court. Imagine, for example, that a U. S. national has been murdered in another country. That country could rightfully seek to punish the killer for committing an act of violence within its territory. The foreign country’s interest lies in protecting the peace in that territory rather than protecting the American specifically. But the United States looks at the same conduct and sees an act of vio- lence against one of its nationals, a person under the particular protection of its laws. The murder of a U. S. national is an offense to the United States as much as it is to the country where the murder occurred and to which the victim is a stranger. That is why the killing of an American abroad is a federal offense that can be prose- cuted in our courts, see 18 U.S. C. §2332(a)(1), and why customary international law allows this exercise of jurisdiction. There are other reasons not to offload all prosecutions for crimes involving Americans abroad. We may lack confidence in the competence or honesty of the other coun- try’s legal system. Less cynically, we may think that special protection for U. S. nationals serves key national interests related to security, trade, commerce, or scholar- ship. Such interests might also give us a stake in punish- ing crimes committed by U. S. nationals abroad— especially crimes that might do harm to our national 8 GAMBLE v. UNITED STATES Opinion of the Court security or foreign relations. See, e.g., §2332a(b) (bomb- ings). These examples reinforce the foundation laid in our antebellum cases: that a crime against two sovereigns constitutes two offenses because each sovereign has an interest to vindicate. We cemented that foundation 70 years after the last of those antebellum cases, in a decision upholding a federal prosecution that followed one by a State. See United States v. Lanza, 260 U.S. 377, 382 (1922) (“[A]n act de- nounced as a crime by both national and state sovereign- ties is an offense against the peace and dignity of both and may be punished by each”). And for decades more, we applied our precedent without qualm or quibble. See, e.g., Screws v. United States, 325 U.S. 91 (1945); Jerome v. United States, 318 U.S. 101 (1943); Puerto Rico v. Shell Co. (P. R.), Ltd., 302 U.S. 253 (1937); Westfall v. United States, 274 U.S. 256 (1927); Hebert v. Louisiana, 272 U.S. 312 (1926). When petitioners in 1959 asked us twice to reverse course, we twice refused, finding “[n]o considera- tion or persuasive reason not presented to the Court in the prior cases” for disturbing our “firmly established” doc- trine. Abbate v. United States, 359 U.S. 187, 195; see also Bartkus v. Illinois, 359 U.S. 121. And then we went on enforcing it, adding another six decades of cases to the doctrine’s history. See, e.g., Puerto Rico v. Sánchez Valle, 579 U. S. ___ (2016); Heath v. Alabama, 474 U.S. 82 (1985); United States v. Wheeler, 435 U.S. 313 (1978); Rinaldi v. United States, 434 U.S. 22 (1977) (per curiam). C We briefly address two objections to this analysis. First, the dissents contend that our dual-sovereignty rule errs in treating the Federal and State Governments as two separate sovereigns when in fact sovereignty belongs to the people. See post, at 3 (opinion of GINSBURG, J.); post, at 7 (opinion of GORSUCH, J.). This argument is Cite as: 587 U. S. ____ (2019) 9 Opinion of the Court based on a non sequitur. Yes, our Constitution rests on the principle that the people are sovereign, but that does not mean that they have conferred all the attributes of sovereignty on a single government. Instead, the people, by adopting the Constitution, “ ‘split the atom of sovereignty.’ ” Alden v. Maine, 527 U.S. 706, 751 (1999) (alteration omitted) (internal quotation marks and citation omitted). As we explained last Term: “When the original States declared their independ- ence, they claimed the powers inherent in sovereignty . . . . The Constitution limited but did not abolish the sovereign powers of the States, which retained ‘a re- siduary and inviolable sovereignty.’ The Federalist No. 39, p. 245 (C. Rossiter ed. 1961). Thus, both the Federal Government and the States wield sovereign powers, and that is why our system of government is said to be one of ‘dual sovereignty.’ Gregory v. Ash- croft, 501 U.S. 452, 457 (1991).” Murphy v. National Collegiate Athletic Assn., 584 U. S. ___, ___ (2018) (slip op., at 14). It is true that the Republic is “ ‘ONE WHOLE,’ ” post, at 3 (opinion of GINSBURG, J.) (quoting The Federalist No. 82, p. 493 (C. Rossiter ed. 1961) (A. Hamilton)); accord, post, at 7 (opinion of GORSUCH, J.). But there is a difference between the whole and a single part, and that difference underlies decisions as foundational to our legal system as McCulloch v. Maryland, 4 Wheat. 316 (1819). There, in terms so directly relevant as to seem presciently tailored to answer this very objection, Chief Justice Marshall distinguished precisely between “the people of a State” and “[t]he people of all the States,” id., at 428, 435; be- tween the “sovereignty which the people of a single state possess” and the sovereign powers “conferred by the peo- ple of the United States on the government of the Union,” id., at 429–430; and thus between “the action of a part” 10 GAMBLE v. UNITED STATES Opinion of the Court and “the action of the whole,” id., at 435–436. In short, McCulloch’s famous holding that a State may not tax the national bank rested on a recognition that the States and the Nation have different “interests” and “right[s].” Id., 431, 436. One strains to imagine a clearer statement of the premises of our dual-sovereignty rule, or a more au- thoritative source. The United States is a federal republic; it is not, contrary to JUSTICE GORSUCH’s suggestion, post, at 10–11, a unitary state like the United Kingdom. Gamble and the dissents lodge a second objection to this line of reasoning. They suggest that because the division of federal and state power was meant to promote liberty, it cannot support a rule that exposes Gamble to a second sentence. See post, at 3–4 (opinion of GINSBURG, J.); post, at 8–9 (opinion of GORSUCH, J.). This argument funda- mentally misunderstands the governmental structure established by our Constitution. Our federal system advances individual liberty in many ways. Among other things, it limits the powers of the Federal Government and protects certain basic liberties from infringement. But because the powers of the Federal Government and the States often overlap, allowing both to regulate often results in two layers of regulation. Taxation is an example that comes immediately to mind. It is also not at all un- common for the Federal Government to permit activities that a State chooses to forbid or heavily restrict—for example, gambling and the sale of alcohol. And a State may choose to legalize an activity that federal law prohib- its, such as the sale of marijuana. So while our system of federalism is fundamental to the protection of liberty, it does not always maximize individual liberty at the ex- pense of other interests. And it is thus quite extraordi- nary to say that the venerable dual-sovereignty doctrine represents a “ ‘desecrat[ion]’ ” of federalism. Post, at 9 (opinion of GORSUCH, J.). Cite as: 587 U. S. ____ (2019) 11 Opinion of the Court III Gamble claims that our precedent contradicts the common- law rights that the Double Jeopardy Clause was originally understood to engraft onto the Constitution— rights stemming from the “common-law pleas of auterfoits acquit [former acquittal] and auterfoits convict [former conviction].” Grady, 495 U.S., at 530 (Scalia, J., dissent- ing). These pleas were treated as “reason[s] why the prisoner ought not to answer [an indictment] at all, nor put himself upon his trial for the crime alleged.” 4 W. Blackstone, Commentaries on the Laws of England 335 (1773) (Blackstone). Gamble argues that those who rati- fied the Fifth Amendment understood these common-law principles (which the Amendment constitutionalized) to bar a domestic prosecution following one by a foreign nation. For support, he appeals to early English and American cases and treatises. We have highlighted one hurdle to Gamble’s reading: the sovereign-specific original meaning of “offence.” But the doctrine of stare decisis is another obstacle. Stare decisis “promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” Payne v. Tennessee, 501 U.S. 808, 827 (1991). Of course, it is also important to be right, especially on constitutional matters, where Congress cannot override our errors by ordinary legislation. But even in constitutional cases, a departure from precedent “demands special justification.” Arizona v. Rumsey, 467 U.S. 203, 212 (1984). This means that some- thing more than “ambiguous historical evidence” is re- quired before we will “flatly overrule a number of major decisions of this Court.” Welch v. Texas Dept. of Highways and Public Transp., 483 U.S. 468, 479 (1987). And the strength of the case for adhering to such decisions grows in proportion to their “antiquity.” Montejo v. Louisiana, 12 GAMBLE v. UNITED STATES Opinion of the Court 556 U.S. 778, 792 (2009). Here, as noted, Gamble’s his- torical arguments must overcome numerous “major deci- sions of this Court” spanning 170 years. In light of these factors, Gamble’s historical evidence must, at a minimum, be better than middling. And it is not. The English cases are a muddle. Trea- tises offer spotty support. And early state and federal cases are by turns equivocal and downright harmful to Gamble’s position. All told, this evidence does not establish that those who ratified the Fifth Amendment took it to bar successive prosecutions under different sovereigns’ laws— much less do so with enough force to break a chain of precedent linking dozens of cases over 170 years. A Gamble’s core claim is that early English cases reflect an established common-law rule barring domestic prosecu- tion following a prosecution for the same act under a different sovereign’s laws. But from the very dawn of the common law in medieval England until the adoption of the Fifth Amendment in 1791, there is not one reported deci- sion barring a prosecution based on a prior trial under foreign law. We repeat: Gamble has not cited and we have not found a single pre-Fifth Amendment case in which a foreign acquittal or conviction barred a second trial in a British or American court. Given this void, Gamble faces a considerable challenge in convincing us that the Fifth Amendment was originally understood to establish such a bar. Attempting to show that such a bar was available, Gamble points to five early English decisions for which we have case reports. We will examine these in some detail, but we note at the outset that they play only a secondary role for Gamble. The foundation of his argument is a decision for which we have no case report: the prosecution in England in Cite as: 587 U. S. ____ (2019) 13 Opinion of the Court 1677 of a man named Hutchinson. (We have a report of a decision denying Hutchinson bail but no report of his trial.) As told by Gamble, Hutchinson, having been tried and acquitted in a foreign court for a murder committed abroad, was accused of the same homicide in an English tribunal, but the English court held that the foreign prose- cution barred retrial. Everything for Gamble stems from this one unreported decision. To the extent that the cases he cites provide any support for his argument—and for the most part, they do not—those cases purport to take their cue from the Hutchinson episode; the same is true of the treatises on which Gamble relies. So what evidence do we have about what actually hap- pened to Hutchinson? The most direct evidence is a report of his application for bail before the Court of King’s Bench. The report spans all of one sentence: “On Habeas Corpus it appeared the Defendant was committed to Newgate on suspicion of Murder in Por- tugal, which by Mr. Attorny being a Fact out of the Kings Dominions, is not triable by Commission, upon 35 H. 8. Cap. 2. §. I. N. 2. but by a Constable and Marshal, and the Court refused to Bail him, & c.” Rex v. Hutchinson, 3 Keb. 785, 84 Eng. Rep. 1011 (1677). From this report, all that we can tell about the court’s thinking is that it found no convincing reason to grant bail, as was typical in murder cases.3 The rest of the report concerns claims by an attorney. We are told that he contested the jurisdiction of the commission before which Hutchinson was to be tried, apparently a special commis- sion that would have issued pursuant to a statute enacted under Henry VIII.4 The commission lacked jurisdiction, —————— 3 See J. Beattie, Crime and the Courts in England: 1660–1800, pp. 281–282 (1986). 4 Although this Act reached conduct committed “out of the King Maj- 14 GAMBLE v. UNITED STATES Opinion of the Court the attorney seemed to suggest, because the crime had occurred in Portugal and thus “out of the Kings Domin- ions.” The attorney claimed that jurisdiction lay instead with “a Constable and Marshal”—an apparent reference to the High Court of Chivalry, which dealt with treason and murder committed abroad.5 But what, if anything, did the King’s Bench make of the attorney’s jurisdictional claims? And more to the point, what happened after bail was denied? The bail report does not say. If Hutchinson did ultimately appear before the Court of Chivalry—and if that court accepted a plea of prior acquit- tal in Portugal—this would be paltry evidence of any common-law principle, which is what Gamble cites Hutchinson to establish. After all, the High Court of Chivalry was a civil-law court prohibited from proceeding under the common law (unlike every other English court of the time save Admiralty). 8 Ric. 2 ch. 5; see also Squibb 162; id., at xxv–xxvi (“The essential distinction between the Court of Chivalry and other courts is . . . that it admin- isters justice in relation to those military matters which are not governed by the common law”). Nor would it be any surprise that we have no report of the proceeding; in fact, “[t]here is no report of a case in which a judge of the Court [of Chivalry] has set out the reasons for his decision earlier than the [20th] century.” Id., at 162. In the end, we have only two early accounts from judges of what finally became of Hutchinson, and both are indi- rect and shaky. First, they appear in the reports of cases decided in the Court of Chancery more than a half century after Hutchinson. Second, both judges cite only one —————— esties Realme of Englande and other his Graces [Dominions],” Acte concerning the triall of Treasons 1543–1544, 35 Hen. 8 ch. 2 (1543– 1544), it applied only to treasons and misprisions of treason—not to homicide, of which Hutchinson was accused. 5 See G. Squibb, The High Court of Chivalry 54, 147–148 (1959) (Squibb); 4 Blackstone 267. Cite as: 587 U. S. ____ (2019) 15 Opinion of the Court source, and it is of lower authority than their own: namely, an account of Hutchinson given by an interested party (a defendant) in a previous, non-criminal case—an account on which the court in that case did not rely or even com- ment.6 Insofar as our two judges seem to add their own details to the Hutchinson saga, we are not told where they obtained this information or whether it reflects mere guesses as to how gaps in the story should be filled in, decades after the fact. Finally, the two judges’ accounts are not entirely consistent. Still, they are the only early judicial glosses on Hutchinson that we have, so we will work with them. The more extensive account appears in the case of Gage v. Bulkeley, Ridg. T. H. 263, 27 Eng. Rep. 824 (Ch. 1744), and what the court said there—far from supporting Gam- ble’s argument—cuts against it. Gage involved a bill in chancery for an account of money deposited with a banker in Paris. The defendants pleaded, as a bar to this lawsuit, “a sentence” “given upon” the same demand in a French court. Ibid. In addressing this plea, Lord Chancellor Hardwicke first determined that foreign judgments are not binding in an English court of law. Here his reasoning was very similar to that found in our dual-sovereignty decisions. Because each judgment rests on the authority of a particular sovereign, the Chancellor thought, it cannot bind foreign courts, which operate by the power of a differ- ent sovereign. Id., at 263–264, 27 Eng. Rep., at 824. —————— 6 See Gage v. Bulkeley, Ridg. T. H. 263, 271, 27 Eng. Rep. 824, 826– 827 (Ch. 1744) (citing Beake v. Tyrrell, 1 Show. K. B. 6); Burrows v. Jemino, 2 Str. 733, 25 Eng. Rep. 235 (K. B. 1726) (same). As noted, the report cited by both judges—which also appears at 89 Eng. Rep. 411 (K. B. 1688)—mentions Hutchinson only in summarizing a defendant’s argument. So does the only other source cited by either judge. See Gage, Ridg. T. H., at 271, 27 Eng. Rep., at 826–827 (citing Beak v. Thyrwhit, 3 Mod. 194, 87 Eng. Rep. 124 (K. B. 1688)). Below we discuss in detail the case that figures in these two reports. See infra, at 19, and n. 11. 16 GAMBLE v. UNITED STATES Opinion of the Court Turning next to courts of equity, the Lord Chancellor saw no reason that the rule should be any different; there too, he thought, a foreign judgment is not binding. Id., at 273, 27 Eng. Rep., at 827. But he did allow that in equity a foreign judgment could serve as “evidence, which may affect the right of [a plaintiff] when the cause comes to be heard.” Ibid. Elaborating on why foreign judgments did not bind English courts, whether of law or equity, the Lord Chan- cellor explained why Hutchinson was “no proof ” to the contrary. In the Chancellor’s telling, Hutchinson was not indicted by the Court of King’s Bench, which could have tried a murder committed in England,7 because that court had no jurisdiction over a homicide committed in Portugal. Gage, Ridge. T. H., at 271, 27 Eng. Rep., at 826–827. Instead, Hutchinson was (as the bail decision indicates) before that court on a writ of habeas corpus, and his case “was referred to the judges to know whether a commission should issue” under a statute similar to the one mentioned in the bail decision. Ibid., 27 Eng. Rep., at 827; see 33 Hen. 8 ch. 28 (1541–1542).8 “And,” he explained, “the judges very rightly and mercifully thought not, because he had undergone one trial already.” Gage, Ridg. T. H., at 271–272, 27 Eng. Rep., at 827 (emphasis added). This suggests that Hutchinson was spared retrial as a matter of discretion (“merc[y]”)—which must be true if the Chan- —————— 74 Blackstone 262. 8 This statute authorized commissioners to try certain defendants for acts of treason or murder committed “in whatsoever other Shire or place, within the King’s dominions or without.” But “[d]espite the words ‘or without’, contemporary opinion seems not to have regarded the extra-territorial operation of this Act as clear.” Squibb 149. In- deed, the statute cited in the Hutchinson bail report, dated to just two years later, cited lingering “doubtes and questions” about whether English courts could try treason committed abroad (in the course of clarifying that treason and misprisions of treason abroad could indeed be tried in England). 35 Hen. 8 ch. 2, § I. Cite as: 587 U. S. ____ (2019) 17 Opinion of the Court cellor was right that foreign judgments were not binding. Indeed, at least one modern scholar agrees (on other grounds as well) that the result in Hutchinson may have been based on “expediency rather than law.” M. Fried- land, Double Jeopardy 362–363 (1969). In the end, then, Gage is doubly damaging to Gamble. First, it squarely rejects the proposition that a litigant in an English court—even a civil litigant in equity—had a right to the benefit of a foreign judgment, a right that the Fifth Amendment might have codified. And second, Gage undermines Gamble’s chief historical example, Hutchinson, by giving a contrary reading of that case— and doing so, no less, in one of the only two judicial ac- counts of Hutchinson that we have from before the Fifth Amendment. The other account appears in Burrows v. Jemino, 2 Str. 733, 93 Eng. Rep. 815 (K. B. 1726).9 In Burrows, a party that was sued in England on a bill of exchange sought an injunction against this suit in the Court of Chancery, contending that the suit was barred by the judgment of a court in Italy. In explaining why he would grant the injunction, Lord Chancellor King cited Hutchinson, which he thought had involved an acquittal in Spanish court that was “allowed to be a good bar to any proceedings here.” 2 Str., at 733, 93 Eng. Rep., at 815. This remark, showing that at least one English judge before the found- ing saw Hutchinson as Gamble does, provides a modicum of support for Gamble’s argument. But that support soft- ens just a few lines down in the report, where the Chan- cellor discusses the status of foreign judgments in courts of law in particular (as distinct from courts of equity like —————— 9 This case is also reported as Burrows v. Jemineau in Sel. Ca. t. 69, 25 Eng. Rep. 228 (Ch. 1726); as Burroughs v. Jamineau in Mos. 1, 25 Eng. Rep. 235; as Burrows v. Jemineau in 2 Eq. Ca. Abr. 476, 22 Eng. Rep. 405; and as Burrows v. Jemino in 2 Eq. Ca. Abr. 524, 22 Eng. Rep. 443. 18 GAMBLE v. UNITED STATES Opinion of the Court his own)—i.e., the courts that actually applied the common- law rules later codified by the Fifth Amendment. Here the Chancellor explained that while he personally would have accepted an Italian judgment as barring any suit at law, “other Judges might be of a different opinion.” Ibid. As a whole, then, the Chancellor’s comments in Burrows can hardly be cited to prove that the common law had made up its mind on this matter; just the opposite. Gamble’s other cases have even less force. The “most instructive” case, he claims, see Brief for Petitioner 13, is the 1775 case of King v. Roche, 1 Leach 134,10 168 Eng. Rep. 169 (K.B.), but that is a curious choice since the Roche court does not so much as mention Hutchinson or even tacitly affirm its supposed holding. The defendant in Roche entered two pleas: prior acquittal abroad and not guilty of the charged crime. All that the Roche court held was that, as a procedural matter, it made no sense to charge the jury with both pleas at once, because a finding for Roche on the first (prior acquittal) would, if successful, bar consideration of the second (not guilty). Roche, 1 Leach, at 135, 168 Eng. Rep., at 169. But on our key question—whether a plea based on a foreign acquittal could be successful—the Roche court said absolutely noth- ing; it had no occasion to do so. Before the prosecution could reply to Roche’s plea of prior acquittal, he withdrew it, opting for a full trial. The name Hutchinson does not appear even in the marginalia of the 1789 edition of Roche, which existed in 1791. See Captain Roche’s Case, 1 Leach at 138–139. Hutchinson is mentioned in connection with Roche only after the Fifth Amendment’s ratification, and only in a compiler’s annotation to the 1800 edition of the Roche case report. See 168 Eng. Rep., at 169, n. (a). That annotation —————— 10 This case is reported as Captain Roche’s Case in 1 Leach 138 (1789 ed.) and in 2 Leach 125 (1792 ed.). Cite as: 587 U. S. ____ (2019) 19 Opinion of the Court in turn cites one case as support for its reading of Hutchinson: Beak v. Thyrwhit, 3 Mod. 194, 87 Eng. Rep. 124 (K. B. 1688). But Beak did not involve a foreign pros- ecution; indeed, it did not involve a prosecution at all. It was an admiralty case for trover and conversion of a ship, and—more to the point—Hutchinson is discussed only in the defendant’s argument in that case, not the court’s response. A report relaying the actual decision in Beak shows that the court ultimately said nothing about the defendant’s Hutchinson argument one way or another. See Beake v. Tyrrell, 1 Show. K. B. 6, 89 Eng. Rep. 411 (1688).11 This same defendant’s argument was the only source of information about Hutchinson on which the Chancellors in Gage and Burrows explicitly relied, as we noted above. All later accounts of Hutchinson seem to stem from this one shallow root. The last of Gamble’s five pre-Fifth Amendment cases, Rex v. Thomas, 1 Lev. 118, 83 Eng. Rep. 326 (K. B. 1664), did not even involve a foreign prosecution. The defendant was indicted for murder in England, and he pleaded a prior acquittal by a Welsh court. But Wales was then part of the “kingdom of England”; its laws were “the laws of England and no other.” 1 Blackstone 94–95; see Thomas, 1 Lev., at 118, 83 Eng. Rep., at 326–327. So the prior trial in Thomas was not under another sovereign’s laws, mak- ing it totally irrelevant for present purposes. Summing up the import of the preratification cases on which Gamble’s argument rests, we have the following: (1) not a single reported case in which a foreign acquittal or conviction barred a later prosecution for the same act in either Britain or America; (2) not a single reported deci- sion in which a foreign judgment was held to be binding in a civil case in a court of law; (3) fragmentary and not —————— 11 This decision is also reported as Beake v. Tirrell, Com. 120, 90 Eng. Rep. 379. 20 GAMBLE v. UNITED STATES Opinion of the Court entirely consistent evidence about a 17th-century case in which a defendant named Hutchinson, having been tried and acquitted for murder someplace in the Iberian Penin- sula, is said to have been spared a second trial for this crime on some ground, perhaps out of “merc[y],” not as a matter of right; (4) two cases (one criminal, one in admi- ralty) in which a party invoked a prior foreign judgment, but the court did not endorse or rest anything on the party’s reliance on that judgment; and (5) two Court of Chancery cases actually holding that foreign judgments were not (or not generally) treated as barring trial at common law. This is the flimsy foundation in case law for Gamble’s argument that when the Fifth Amendment was ratified, it was well understood that a foreign criminal judgment would bar retrial for the same act. Surveying the pre-Fifth Amendment cases in 1959, we concluded that their probative value was “dubious” due to “confused and inadequate reporting.” Bartkus, 359 U.S., at 128, n. 9. Our assessment was accurate then, and the passing years have not made those early cases any clearer or more valuable. B Not to worry, Gamble responds: Whatever the English courts actually did prior to adoption of the Fifth Amend- ment, by that time the early English cases were widely thought to support his view. This is a curious argument indeed. It would have us hold that the Fifth Amendment codified a common-law right that existed in legend, not case law. In any event, the evidence that this right was thought to be settled is very thin. Gamble’s argument is based on treatises, but they are not nearly as helpful as he claims. Alone they do not come close to settling the historical question with enough force to meet Gamble’s particular burden under stare decisis. Gamble begins with Blackstone, but he reads volumes Cite as: 587 U. S. ____ (2019) 21 Opinion of the Court into a flyspeck. In the body of his Commentaries, all that Blackstone stated was that successive prosecutions could be barred by prior acquittals by “any court having compe- tent jurisdiction of the offence.” 4 Blackstone 335. This is simply a statement of the general double-jeopardy rule, without a word on separate sovereigns. So Gamble directs our attention to a footnote that appears after the phrase “any court having competent jurisdiction.” The footnote refers to the report of Beak v. Thyrwhit, which, as noted, merely rehearses the argument of the defendant in that case, who in turn mentioned Hutchinson—but not in a criminal prosecution, much less one preceded by a foreign trial. This thread tying Blackstone to Hutchinson—a thread woven through footnotes and reports of reports but not a single statement by a court (or even by a party to an actual prosecution)—is tenuous evidence that Blackstone endorsed Gamble’s reading of Hutchinson. When Gamble’s attorney was asked at argument which other treatises he found most likely to have informed those who ratified the Fifth Amendment, he offered four. See Tr. of Oral Arg. 30–31. But two of the four treatises did not exist when the Fifth Amendment was ratified. See 1 J. Chitty, Criminal Law 458 (1816); 1 T. Starkie, Crimi- nal Pleading 300–301, n. h (1814). And a third discusses not a single case involving a prior prosecution under for- eign law. See 2 W. Hawkins, Pleas of the Crown 372 (1739). That leaves one treatise cited by Gamble that spoke to this issue before ratification, F. Buller, An Introduction to the Law Relative to Trials at Nisi Prius (5th ed. 1788). That treatise concerned the trial of civil cases, id., at 2, and its discussion of prior judgments appeared under the heading “Of Evidence in general,” id., at 221. After con- sidering the evidentiary value of such documents as acts of Parliament, deeds, and depositions, Buller addressed what we would later call issue preclusion. Lifting language 22 GAMBLE v. UNITED STATES Opinion of the Court from an earlier publication, H. Bathurst, The Theory of Evidence 39 (1761), Buller wrote that a final judgment was “conclusive Evidence” “against all the World” of the factual determinations underlying the judgment. Buller, Nisi Prius, at 245. And it is on this basis that Buller (again lifting from Bathurst) said that even someone acquitted of a crime in Spain “might,” upon indictment in England, “plead the Acquittal in Spain in Bar.” Ibid. This endorsement of the preclusive effect of a foreign judgment in civil litigation (which even today is not uni- formly accepted in this country12) provides no direct sup- port for Gamble since his prior judgment was one of con- viction, not acquittal. (There is, after all, a major difference between the preclusive effect of a prior acquittal and that of a prior conviction: Only the first would make a subsequent prosecution pointless, by requiring later courts to assume a defendant’s innocence from the start.) And in any case, the fleeting references in the Buller and Bat- —————— 12 Compare Restatement (Fourth) of Foreign Relations Law of the United States § 481 (2018) (With a few specified exceptions, “a final, conclusive, and enforceable judgment of a court of a foreign state granting or denying recovery of a sum of money, or determining a legal controversy, is entitled to recognition by courts in the United States”) and Restatement (Second) of Conflict of Laws § 98, Comment b. (1969) (“In most respects,” judgments rendered in a foreign nation satisfying specified criteria “will be accorded the same degree of recognition to which sister State judgments are entitled”), with, e.g., Derr v. Swarek, 766 F.3d 430, 437 (CA5 2014) (recognition of foreign judgments is not required but is a matter of comity); Diorinou v. Mezitis, 237 F.3d 133, 142–143 (CA2 2001) (same); id., at 139–140 (“It is well-established that United States courts are not obliged to recognize judgments rendered by a foreign state, but may choose to give res judicata effect to foreign judgments on the basis of comity” (emphasis in original; internal quotation marks omitted)); MacArthur v. San Juan County, 497 F.3d 1057, 1067 (CA10 2007) (“Comity is not an inexorable command . . . and a request for recognition of a foreign judgment may be rebuffed on any number of grounds”); Guinness PLC v. Ward, 955 F.2d 875, 883 (CA4 1992) (“The effect to be given foreign judgments has therefore histori- cally been determined by more flexible principles of comity”). Cite as: 587 U. S. ____ (2019) 23 Opinion of the Court hurst treatises are hardly sufficient to show that the Mem- bers of the First Congress and the state legislators who ratified the Fifth Amendment understood the Double Jeopardy Clause to bar a prosecution in this country after acquittal abroad for the same criminal conduct. Gamble attempts to augment his support by citing treatises published after the Fifth Amendment was adopted.13 And he notes that the Court in District of Columbia v. Heller, 554 U.S. 570, 605–610 (2008), took treatises of a similar vintage to shed light on the public understanding in 1791 of the right codified by the Second Amendment. But the Heller Court turned to these later treatises only after surveying what it regarded as a wealth of authority for its reading—including the text of the Second Amend- ment and state constitutions. The 19th-century treatises were treated as mere confirmation of what the Court thought had already been established. Here Gamble’s evidence as to the understanding in 1791 of the double jeopardy right is not at all comparable. C When we turn from 19th-century treatises to 19th- century state cases, Gamble’s argument appears no stronger. The last time we looked, we found these state cases to be “inconclusive.” Bartkus, 359 U.S., at 131. They seemed to be evenly split and to “manifest conflict[s] in conscience” rather than confident conclusions about the common law. Ibid. Indeed, two of those cases manifested nothing more than a misreading of a then-recent decision of ours. Id., at 130. We see things no differently today. The distinction between believing successive prosecu- tions by separate sovereigns unjust and holding them —————— 13 See, e.g., F. Wharton, A Treatise on the Law of Homicide in the United States 283 (1855); F. Wharton, A Treatise on the Criminal Law of the United States 137 (1846); L. MacNally, The Rules of Evidence on Pleas of the Crown 428 (1802). 24 GAMBLE v. UNITED STATES Opinion of the Court unlawful appears right on the face of the first state case that Gamble discusses. In State v. Brown, 2 N. C. 100, 101 (1794), the court opined that it would be “against natural justice” for a man who stole a horse in the Ohio Territory to be punished for theft in North Carolina just for having brought the horse to that State. To avoid this result, the Brown court simply construed North Carolina’s theft law not to reach the defendant’s conduct. But it did so precisely because the defendant otherwise could face two prosecutions for the same act of theft—despite the common-law rule against double jeopardy for the same “offence”—since “the offence against the laws of this State, and the offence against the laws of [the Ohio Territory] are distinct; and satisfaction made for the offence committed against this State, is no satisfaction for the offence com- mitted against the laws there.” Ibid. Far from undermin- ing the dual-sovereignty rule, Brown expressly affirms it, rejecting outright the idea that a judgment in one sover- eign’s court could “be pleadable in bar to an indictment” in another’s. Ibid. Other state courts were divided. Massachusetts and Michigan courts thought that at least some trials in either federal or state court could bar prosecution in the other, see Commonwealth v. Fuller, 49 Mass. 313, 318 (1844); Harlan v. People, 1 Doug. 207, 212 (Mich. 1843), but those antebellum cases are poor images of the founding-era common law, resting as they do on what we have ex- plained, see Bartkus, 359 U.S., at 130, was a misreading of our then-recent decision in Houston v. Moore, 5 Wheat. 1 (1820), which we discuss below. A Vermont court did take the same view based on its own analysis of the ques- tion, State v. Randall, 2 Aik. 89, 100–101 (1827), but just a few years later a Virginia court declared the opposite, Hendrick v. Commonwealth, 32 Va. 707, 713 (1834) (pun- ishment for forgery under both federal and Virginia law is not double punishment for the “same offence” since “the Cite as: 587 U. S. ____ (2019) 25 Opinion of the Court law of Virginia punishes the forgery, not because it is an offence against the U. States, but because it is an offence against this commonwealth”). And South Carolina—a perfect emblem of the time—produced cases cutting both ways. See State v. Antonio, 2 Tread. 776, 781 (1816); State v. Tutt, 2 Bail. 44, 47–48 (1831). This is not the quantum of support for Gamble’s claim about early American common law that might withstand his burden under stare decisis. And once we look beyond the Nation’s earliest years, the body of state-court deci- sions appears even less helpful to Gamble’s position. We aptly summarized those cases in Bartkus, 359 U.S., at 134–136, and need not add to that discussion here.14 D Less useful still, for Gamble’s purposes, are the two early Supreme Court cases on which he relies. In the first, a member of the Pennsylvania militia was tried by a state court-martial for the federal offense of deserting the mili- tia. See Houston v. Moore, 5 Wheat. 1 (1820). The ac- —————— 14 As we put it in Bartkus, 359 U.S., at 134–136: “Of the twenty-eight States which have considered the validity of successive state and federal prosecutions as against a challenge of violation of either a state constitutional double-jeopardy provision or a common-law evidentiary rule of autrefois acquit and autrefois convict, twenty-seven have refused to rule that the second prosecution was or would be barred. These States were not bound to follow this Court and its interpretation of the Fifth Amendment. The rules, constitutional, statutory, or common law which bound them, drew upon the same experience as did the Fifth Amendment, but were and are of separate and independent authority. “Not all of the state cases manifest careful reasoning, for in some of them the language concerning double jeopardy is but offhand dictum. But in an array of state cases there may be found full consideration of the arguments supporting and denying a bar to a second prosecution. These courts interpreted their rules as not proscribing a second prose- cution where the first was by a different government and for violation of a different statute.” (Footnote omitted.) 26 GAMBLE v. UNITED STATES Opinion of the Court cused objected that the state court-martial lacked jurisdic- tion to try this federal offense. Since the offense could be tried in federal court, the defendant argued, allowing the state court-martial to try him for this crime could expose him to successive federal and state prosecutions for the same offense. Justice Washington answered that a ruling in either federal or state court would bar a second trial in the other. See id., at 31. But as we later explained, “that language by Mr. Justice Washington reflected his belief that the state statute imposed state sanc- tions for violation of a federal criminal law. As he viewed the matter, the two trials would not be of simi- lar crimes arising out of the same conduct; they would be of the same crime. Mr. Justice Johnson agreed that if the state courts had become empowered to try the defendant for the federal offense, then such a state trial would bar a federal prosecution. Thus Houston v. Moore can be cited only for the presence of a bar in a case in which the second trial is for a viola- tion of the very statute whose violation by the same conduct has already been tried in the courts of an- other government empowered to try that question.” Bartkus, 359 U.S., at 130 (citations omitted). In other words, Justice Washington taught only that the law prohibits two sovereigns (in that case, Pennsylvania and the United States) from both trying an offense against one of them (the United States). That is consistent with our doctrine allowing successive prosecutions for offenses against separate sovereigns. In light of this reading of Houston, the case does not undercut our dual-sovereignty doctrine. It may seem strange to think of state courts as prosecut- ing crimes against the United States, but that is just what state courts and commentators writing within a decade of Houston thought it involved. See, e.g., Tutt, 2 Bail., at 47 Cite as: 587 U. S. ____ (2019) 27 Opinion of the Court (“In [Houston], the act punished by the law of the State, was certainly and exclusively an offence against the gen- eral Government . . . [whereas h]ere, certainly there is an offence against the State, and a very different one from that committed against the United States” (emphasis added)); 1 J. Kent, Commentaries on American Law 373– 374 (1826) (“[M]any . . . acts of [C]ongress . . . permit jurisdiction, over the offences therein described, to be exercised by state magistrates and courts,” and what Houston bars are successive prosecutions for the same “crime against the United States”). Even the scholar Gamble cites for his cause finds Houston not “[o]n point” because it “was discussing the jurisdiction of the state court to try a crime against the nation and impose a fine payable to the latter government.” Grant, Successive Prosecutions by State and Nation: Common Law and British Empire Comparisons, 4 UCLA L. Rev. 1, 7, and n. 27 (1956) (citing Warren, Federal Criminal Laws and the State Courts, 38 Harv. L. Rev. 545 (1925)). Perhaps feeling Houston wobble, Gamble says pre- emptively that if it is “inconclusive,” Brief for Petitioner 26, other cases are clear. But the other federal case on which he leans is worse for his argument. In United States v. Furlong, 5 Wheat. 184, 197 (1820), we said that an acquittal of piracy in the court of any “civilized State” would bar prosecution in any other nation because piracy, as an “offence within the criminal jurisdiction of all na- tions,” is “punished by all.”15 Ending his quotation from —————— 15 Piracywas understood as a violation of the law of nations, which was seen as common to all. That is why any successive prosecution for piracy, being under the same law, would have been for the same of- fense. See United States v. Smith, 5 Wheat. 153, 163, n. a (1820) (quoting definitions of piracy by several ancient and more recent authorities). See also 4 Blackstone 71 (“[T]he crime of piracy, or rob- bery and depredation upon the high seas, is an offence against the universal law of society; a pirate being, according to Sir Edward Coke, 28 GAMBLE v. UNITED STATES Opinion of the Court Furlong at this point, Gamble gives the impression that Furlong rejects any dual-sovereignty rule. But that im- pression is shattered by the next sentence: “Not so with the crime of murder.” Ibid. As to that crime, the Furlong Court was “inclined to think that an acquittal” in the United States “would not have been a good plea in a Court of Great Britain.” Ibid. (emphasis added). And that was precisely because murder is “punishable under the laws of each State” rather than falling under some “universal jurisdiction.” Ibid. (emphasis added). When it came to crimes that were understood to offend against more than one sovereign, Furlong treated them as separate offenses— just as we have a dozen times since, and just as we do today. Thus, of the two federal cases that Gamble cites against the dual-sovereignty rule, Houston squares with it and Furlong supports it. Together with the muddle in the early state cases, this undermines Gamble’s claim that the early American bench and bar took the Fifth Amendment to proscribe successive prosecutions by different sover- eigns. And without making a splash in the legal practice of the time, a few early treatises by themselves cannot unsettle almost two centuries of precedent. IV Besides appealing to the remote past, Gamble contends that recent changes—one doctrinal, one practical—blunt the force of stare decisis here. They do not. —————— hostis humani generis [enemies of mankind]. As therefore he has renounced all the benefits of society and government, and has reduced himself afresh to the savage state of nature, by declaring war against all mankind, all mankind must declare war against him: so that every community has a right, by the rule of self-defence, to inflict that pun- ishment upon him, which every individual would in a state of nature have been otherwise entitled to do, for any invasion of his person or personal property” (footnote omitted)). Cite as: 587 U. S. ____ (2019) 29 Opinion of the Court A If historical claims form the chorus of Gamble’s argu- ment, his refrain is “incorporation.” In Gamble’s telling, the recognition of the Double Jeopardy Clause’s incorpora- tion against the States, see Benton v. Maryland, 395 U.S. 784, 794 (1969), washed away any theoretical foundation for the dual-sovereignty rule, see United States v. Gaudin, 515 U.S. 506, 521 (1995) (abrogating precedent when “subsequent decisions of this Court” have “eroded” its foundations). But this incorporation-changes-everything argument trades on a false analogy. The analogy Gamble draws is to the evolution of our doctrine on the Fourth Amendment right against unrea- sonable searches and seizures.16 We have long enforced this right by barring courts from relying on evidence gath- ered in an illegal search. Thus, in Weeks v. United States, 232 U.S. 383, 391–393 (1914), the Court held that federal prosecutors could not rely on the fruits of an unreasonable search undertaken by federal agents. But what if state or local police conducted a search that would have violated the Fourth Amendment if conducted by federal agents? Before incorporation, the state search would not have violated the Federal Constitution, so federal law would not have barred admission of the resulting evidence in a state prosecution. But by the very same token, under what was termed “the silver-platter doctrine,” state authorities could hand such evidence over to federal prosecutors for use in a federal case. See id., at 398. Once the Fourth Amendment was held to apply to the States as well as the Federal Government, however, the silver-platter doctrine was scuttled. See Elkins v. United States, 364 U.S. 206 (1960); Wolf v. Colorado, 338 U.S. 25 —————— 16 He draws a similar analogy to the Fifth Amendment right against self-incrimination, but our response to his Fourth Amendment analogy would answer that argument as well. 30 GAMBLE v. UNITED STATES Opinion of the Court (1949). Now the fruits of unreasonable state searches are inadmissible in federal and state courts alike. Gamble contends that the incorporation of the Double Jeopardy Clause should likewise end the dual-sovereignty rule, but his analogy fails. The silver-platter doctrine was based on the fact that the state searches to which it ap- plied did not at that time violate federal law. Once the Fourth Amendment was incorporated against the States, the status of those state searches changed. Now they did violate federal law, so the basis for the silver-platter doc- trine was gone. See Elkins, 364 U.S., at 213 (“The foun- dation upon which the admissibility of state-seized evi- dence in a federal trial originally rested—that unreasonable state searches did not violate the Federal Constitution—thus disappeared [with incorporation]”). By contrast, the premises of the dual-sovereignty doc- trine have survived incorporation intact. Incorporation meant that the States were now required to abide by this Court’s interpretation of the Double Jeopardy Clause. But that interpretation has long included the dual-sovereignty doctrine, and there is no logical reason why incorporation should change it. After all, the doctrine rests on the fact that only same-sovereign successive prosecutions are prosecutions for the “same offense,” see Part II, supra— and that is just as true after incorporation as before. B If incorporation is the doctrinal shift that Gamble in- vokes to justify a departure from precedent, the practical change he cites is the proliferation of federal criminal law. Gamble says that the resulting overlap of federal and criminal codes heightens the risk of successive prosecu- tions under state and federal law for the same criminal conduct. Thus, Gamble contends, our precedent should yield to “ ‘far-reaching systemic and structural changes’ ” that make our “earlier error all the more egregious and Cite as: 587 U. S. ____ (2019) 31 Opinion of the Court harmful.” South Dakota v. Wayfair, Inc., 585 U. S. ___, ___ (2018) (slip op., at 18). But unlike Gamble’s appeal to incorporation, this argument obviously assumes that the dual-sovereignty doctrine was legal error from the start. So the argument is only as strong as Gamble’s argument about the original understanding of double jeopardy rights, an argument that we have found wanting. Insofar as the expansion of the reach of federal criminal law has been questioned on constitutional rather than policy grounds, the argument has focused on whether Congress has overstepped its legislative powers under the Constitution. See, e.g., Gonzales v. Raich, 545 U.S. 1, 57– 74 (2005) (THOMAS, J., dissenting). Eliminating the dual- sovereignty rule would do little to trim the reach of federal criminal law, and it would not even prevent many succes- sive state and federal prosecutions for the same criminal conduct unless we also overruled the long-settled rule that an “offence” for double jeopardy purposes is defined by statutory elements, not by what might be described in a looser sense as a unit of criminal conduct. See Block- burger v. United States, 284 U.S. 299 (1932). Perhaps believing that two revolutionary assaults in the same case would be too much, Gamble has not asked us to overrule Blockburger along with the dual-sovereignty rule. * * * The judgment of the Court of Appeals for the Eleventh Circuit is affirmed. It is so ordered. Cite as: 587 U. S. ____ (2019) 1 THOMAS, J., concurring SUPREME COURT OF THE UNITED STATES _________________ No. 17–646 _________________ TERANCE MARTEZ GAMBLE, PETITIONER v.	We consider in this case whether to overrule a longstanding interpretation of the Double Jeopardy Clause of the Fifth Amendment. That Clause provides that no person may be “twice put in jeopardy” “for the same of- fence.” Our double jeopardy case law is complex, but at its core, the Clause means that those acquitted or convicted of a particular “offence” cannot be tried a second time for the same “offence.” But what does the Clause mean by an “offence”? We have long held that a crime under one sovereign’s laws is not “the same offence” as a crime under the laws of another sovereign. Under this “dual-sovereignty” doc- trine, a State may prosecute a defendant under state law even if the Federal Government has prosecuted him for the same conduct under a federal statute. Or the reverse may happen, as it did here. Terance Gamble, convicted by Alabama for possessing a firearm as a felon, now faces prosecution by the United States under its own felon-in-possession law. Attacking this second prosecution on double jeopardy grounds, Gamble asks us 2 to overrule the dual-sovereignty doctrine. He contends that it departs from the founding-era understanding of the right enshrined by the Double Jeopardy Clause. But the historical evidence assembled by Gamble is feeble; point- ing the other way are the Clause’s text, other historical evidence, and 10 years of precedent. Today we affirm that precedent, and with it the decision below. I In November 2015, a local police officer in Mobile, Ala- bama, pulled Gamble over for a damaged headlight. Smelling marijuana, the officer searched Gamble’s car, where he found a loaded 9-mm handgun. Since Gamble had been convicted of second-degree robbery, his posses- sion of the handgun violated an Alabama law providing that no one convicted of “a crime of violence” “shall own a firearm or have one in his or her possession.” Ala. Code (2015); see (defining “crime of violence” to include robbery). After Gamble pleaded guilty to this state offense, federal prosecutors indicted him for the same instance of possession under a federal law—one forbidding those convicted of “a crime punishable by imprisonment for a term exceeding one year to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition.” 18 U.S. C. Gamble moved to dismiss on one ground: The federal indictment was for “the same offence” as the one at issue in his state conviction and thus exposed him to double jeopardy. But because this Court has long held that two offenses “are not the ‘same offence’ ” for double jeopardy purposes if “prosecuted by different sovereigns,” Heath v. Alabama, the District Court de- nied Gamble’s motion to dismiss. Gamble then pleaded guilty to the federal offense while preserving his right to challenge the denial of his motion to dismiss on double Cite as: 58 U. S. (20) 3 Opinion of the Court jeopardy grounds. But on appeal the Eleventh Circuit affirmed, citing the dual-sovereignty doctrine. 694 Fed. Appx. 50 (201). We granted certiorari to determine whether to overturn that doctrine.1 585 U. S. (2018). Gamble contends that the Double Jeopardy Clause must forbid successive prosecutions by different sovereigns because that is what the founding-era common law did. But before turning to that historical claim, see Part I infra, we review the Clause’s text and some of the cases Gamble asks us to overturn. A We start with the text of the Fifth Amendment. Al- though the dual-sovereignty rule is often dubbed an “excep- tion” to the double jeopardy right, it is not an exception at all. On the contrary, it follows from the text that defines that right in the first place. “[T]he language of the Clause protects individuals from being twice put in jeopardy ‘for the same offence,’ not for the same conduct or actions,” as Justice Scalia wrote in a soon-vindicated dissent, see United And the term “ ‘[o]ffence’ was commonly understood in 191 to mean ‘transgression,’ that is, ‘the Violation or Breaking of a Law.’ ” 495 U.S., at (Scalia, J., dissenting) (quoting Dictionarium Britannicum (Bailey ed. 130)). See also 2 R. Burn & J. Burn, A New Law Diction- ary 16 (1) (“OFFENCE, is an act committed against law, or omitted where the law requires it”). As originally —————— 1 In addressing that question, we follow the parties’ lead and assume, without deciding, that the state and federal offenses at issue here satisfy the other criteria for being the “same offence” under our double jeopardy precedent. See 304 (32). 4 understood, then, an “offence” is defined by a law, and each law is defined by a sovereign. So where there are two sovereigns, there are two laws, and two “offences.” See 495 U.S., at (“If the same conduct violates two (or more) laws, then each of- fense may be separately prosecuted”); 14 How. 13, 1 (“The constitutional provision is not, that no person shall be subject, for the same act, to be twice put in jeopardy of life or limb; but for the same offence, the same violation of law, no person’s life or limb shall be twice put in jeopardy” ). Faced with this reading, Gamble falls back on an epi- sode from the Double Jeopardy Clause’s drafting history.2 The first Congress, working on an earlier draft that would have banned “ ‘more than one trial or one punishment for the same offence,’ ” voted down a proposal to add “ ‘by any law of the United States.’ ” 1 Annals of Cong. 53 (189). In rejecting this addition, Gamble surmises, Congress must have intended to bar successive prosecutions regard- less of the sovereign bringing the charge. Even if that inference were justified—something that the Government disputes—it would count for little. The private intent behind a drafter’s rejection of one version of a text is shoddy evidence of the public meaning of an altogether different text. Cf. United States v. Craft, 535 —————— 2 Gamble also cites founding-era uses of the word “offence” that are not tied to violations of a sovereign’s laws, but the examples are not very telling. Some, for instance, play on the unremarkable fact that at the founding, “offence” could take on a different sense in nonlegal settings, much as “offense” does today. In this vein, Gamble cites a th-century dictionary defining “offense” broadly as “any transgres- sion of law, divine or human; a crime; sin; act of wickedness or omission of duty.” 2 N. Webster, An American Dictionary of the English Lan- guage (1828). But the question is what “offence” meant in legal con- texts. See (“An offence, in its legal signification, means the transgression of a law.” (emphasis added)). Cite as: 58 U. S. (20) 5 Opinion of the Court U. S. 24, 28 (2002) (“[F]ailed legislative proposals are a particularly dangerous ground on which to rest an inter- pretation of a prior statute” (internal quotation marks omitted)). Besides, if we allowed conjectures about purpose to inform our reading of the text, the Government’s conjec- ture would prevail. The Government notes that the Decla- ration of Independence denounced King George I for “protecting [British troops] by a mock Trial, from punish- ment for any Murders which they should commit on the Inhabitants of these States.” ¶ 1. The Declaration was alluding to “the so-called Murderers’ Act, passed by Par- liament after the Boston Massacre,” Amar, Sixth Amend- ment First Principles, 84 Geo. L. J. 641, 68, n. 181 (96), a law that allowed British officials indicted for murder in America to be “ ‘tried in England, beyond the control of local juries.’ ” (quoting J. Blum et al., The National Experience 95 (3d ed. 3)). “During the late colonial period, Americans strongly objected to [t]his circum- vention of the judgment of the victimized community.” Amar, 84 Geo. L. Rev., at 68, n. 181. Yet on Gamble’s reading, the same Founders who quite literally revolted against the use of acquittals abroad to bar criminal prose- cutions here would soon give us an Amendment allow- ing foreign acquittals to spare domestic criminals. We doubt it. We see no reason to abandon the sovereign-specific reading of the phrase “same offence,” from which the dual- sovereignty rule immediately follows. B Our cases reflect the same reading. A close look at them reveals how fidelity to the Double Jeopardy Clause’s text does more than honor the formal difference between two distinct criminal codes. It honors the substantive differ- ences between the interests that two sovereigns can have 6 in punishing the same act. The question of successive federal and state prosecu- tions arose in three antebellum cases implying and then spelling out the dual-sovereignty doctrine. The first, Fox v. Ohio, involved an Ohio prosecution for the passing of counterfeit coins. The defendant argued that since Congress can punish counterfeiting, the States must be barred from doing so, or else a person could face two trials for the same offense, contrary to the Fifth Amendment. We rejected the defendant’s premise that under the Double Jeopardy Clause “offences falling within the competency of different authorities to restrain or punish them would not properly be subjected to the conse- quences which those authorities might ordain and affix to their perpetration.” Indeed, we observed, the nature of the crime or its effects on “public safety” might well “deman[d]” separate prosecutions. Generalizing from this point, we declared in a second case that “the same act might, as to its character and tendencies, and the consequences it involved, constitute an offence against both the State and Federal governments, and might draw to its commission the penalties denounced by either, as appropriate to its character in reference to each.” United A third antebellum case, expanded on this concern for the different interests of separate sovereigns, after tracing it to the text in the manner set forth above. Recalling that the Fifth Amend- ment prohibits double jeopardy not “for the same ac[t]” but “for the same offence,” and that “[a]n offence, in its legal signification, means the transgression of a law,” at we drew the now-familiar inference: A single act “may be an offence or transgression of the laws of ” two sovereigns, and hence punishable by both, Then we gave color to this abstract principle—and to the diverse inter- ests it might vindicate—with an example. An assault on a Cite as: 58 U. S. (20) Opinion of the Court United States marshal, we said, would offend against the Nation and a State: the first by “hindering” the “execution of legal process,” and the second by “breach[ing]” the “peace of the State.” That duality of harm explains how “one act” could constitute “two offences, for each of which [the offender] is justly punishable.” This principle comes into still sharper relief when we consider a prosecution in this country for crimes commit- ted abroad. If, as Gamble suggests, only one sovereign may prosecute for a single act, no American court—state or federal—could prosecute conduct already tried in a foreign court. Imagine, for example, that a U. S. national has been murdered in another country. That country could rightfully seek to punish the killer for committing an act of violence within its territory. The foreign country’s interest lies in protecting the peace in that territory rather than protecting the American specifically. But the United States looks at the same conduct and sees an act of vio- lence against one of its nationals, a person under the particular protection of its laws. The murder of a U. S. national is an offense to the United States as much as it is to the country where the murder occurred and to which the victim is a stranger. That is why the killing of an American abroad is a federal offense that can be prose- cuted in our courts, see 18 U.S. C. and why customary international law allows this exercise of jurisdiction. There are other reasons not to offload all prosecutions for crimes involving Americans abroad. We may lack confidence in the competence or honesty of the other coun- try’s legal system. Less cynically, we may think that special protection for U. S. nationals serves key national interests related to security, trade, commerce, or scholar- ship. Such interests might also give us a stake in punish- ing crimes committed by U. S. nationals abroad— especially crimes that might do harm to our national 8 security or foreign relations. See, e.g., (bomb- ings). These examples reinforce the foundation laid in our antebellum cases: that a crime against two sovereigns constitutes two offenses because each sovereign has an interest to vindicate. We cemented that foundation 0 years after the last of those antebellum cases, in a decision upholding a federal prosecution that followed one by a State. See United (12) (“[A]n act de- nounced as a crime by both national and state sovereign- ties is an offense against the peace and dignity of both and may be punished by each”). And for decades more, we applied our precedent without qualm or quibble. See, e.g., (45); Jerome v. United States, (43); Puerto (3); (1); Hebert v. Louisiana, 22 U.S. 312 (16). When petitioners in 59 asked us twice to reverse course, we twice refused, finding “[n]o considera- tion or persuasive reason not presented to the Court in the prior cases” for disturbing our “firmly established” doc- trine. 5; see also And then we went on enforcing it, adding another six decades of cases to the doctrine’s history. See, e.g., Puerto Rico v. Sánchez Valle, 59 U. S. (2016); ; United (8); () C We briefly address two objections to this analysis. First, the dissents contend that our dual-sovereignty rule errs in treating the Federal and State Governments as two separate sovereigns when in fact sovereignty belongs to the people. See post, at 3 (opinion of GINSBURG, J.); post, at (opinion of GORSUCH, J.). This argument is Cite as: 58 U. S. (20) 9 Opinion of the Court based on a non sequitur. Yes, our Constitution rests on the principle that the people are sovereign, but that does not mean that they have conferred all the attributes of sovereignty on a single government. Instead, the people, by adopting the Constitution, “ ‘split the atom of sovereignty.’ ” (99) (alteration omitted) (internal quotation marks and citation omitted). As we explained last Term: “When the original States declared their independ- ence, they claimed the powers inherent in sovereignty The Constitution limited but did not abolish the sovereign powers of the States, which retained ‘a re- siduary and inviolable sovereignty.’ The Federalist No. 39, p. 245 (C. Rossiter ed. 61). Thus, both the Federal Government and the States wield sovereign powers, and that is why our system of government is said to be one of ‘dual sovereignty.’ (91).” Murphy v. National Collegiate Athletic Assn., 584 U. S. (2018) (slip op., at 14). It is true that the Republic is “ ‘ONE WHOLE,’ ” post, at 3 (opinion of GINSBURG, J.) (quoting The Federalist No. 82, p. 493 (C. Rossiter ed. 61) (A. Hamilton)); accord, post, at (opinion of GORSUCH, J.). But there is a difference between the whole and a single part, and that difference underlies decisions as foundational to our legal system as (18). There, in terms so directly relevant as to seem presciently tailored to answer this very objection, Chief Justice Marshall distinguished precisely between “the people of a State” and “[t]he people of all the States,” ; be- tween the “sovereignty which the people of a single state possess” and the sovereign powers “conferred by the peo- ple of the United States on the government of the Union,” at 429–430; and thus between “the action of a part” 10 and “the action of the whole,” –436. In short, McCulloch’s famous holding that a State may not tax the national bank rested on a recognition that the States and the Nation have different “interests” and “right[s].” 431, 436. One strains to imagine a clearer statement of the premises of our dual-sovereignty rule, or a more au- thoritative source. The United States is a federal republic; it is not, contrary to JUSTICE GORSUCH’s suggestion, post, at 10–11, a unitary state like the United Kingdom. Gamble and the dissents lodge a second objection to this line of reasoning. They suggest that because the division of federal and state power was meant to promote liberty, it cannot support a rule that exposes Gamble to a second sentence. See post, at 3–4 (opinion of GINSBURG, J.); post, at 8–9 (opinion of GORSUCH, J.). This argument funda- mentally misunderstands the governmental structure established by our Constitution. Our federal system advances individual liberty in many ways. Among other things, it limits the powers of the Federal Government and protects certain basic liberties from infringement. But because the powers of the Federal Government and the States often overlap, allowing both to regulate often results in two layers of regulation. Taxation is an example that comes immediately to mind. It is also not at all un- common for the Federal Government to permit activities that a State chooses to forbid or heavily restrict—for example, gambling and the sale of alcohol. And a State may choose to legalize an activity that federal law prohib- its, such as the sale of marijuana. So while our system of federalism is fundamental to the protection of liberty, it does not always maximize individual liberty at the ex- pense of other interests. And it is thus quite extraordi- nary to say that the venerable dual-sovereignty doctrine represents a “ ‘desecrat[ion]’ ” of federalism. Post, at 9 (opinion of GORSUCH, J.). Cite as: 58 U. S. (20) 11 Opinion of the Court I Gamble claims that our precedent contradicts the common- law rights that the Double Jeopardy Clause was originally understood to engraft onto the Constitution— rights stemming from the “common-law pleas of auterfoits acquit [former acquittal] and auterfoits convict [former conviction].” (Scalia, J., dissent- ing). These pleas were treated as “reason[s] why the prisoner ought not to answer [an indictment] at all, nor put himself upon his trial for the crime alleged.” 4 W. Blackstone, Commentaries on the Laws of England 335 (13) (Blackstone). Gamble argues that those who rati- fied the Fifth Amendment understood these common-law principles (which the Amendment constitutionalized) to bar a domestic prosecution following one by a foreign nation. For support, he appeals to early English and American cases and treatises. We have highlighted one hurdle to Gamble’s reading: the sovereign-specific original meaning of “offence.” But the doctrine of stare decisis is another obstacle. Stare decisis “promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” Payne v. Tennessee, (91). Of course, it is also important to be right, especially on constitutional matters, where Congress cannot override our errors by ordinary legislation. But even in constitutional cases, a departure from precedent “demands special justification.” Arizona v. Rumsey, (84). This means that some- thing more than “ambiguous historical evidence” is re- quired before we will “flatly overrule a number of major decisions of this Court.” (8). And the strength of the case for adhering to such decisions grows in proportion to their “antiquity.” Montejo v. Louisiana, 12 Here, as noted, Gamble’s his- torical arguments must overcome numerous “major deci- sions of this Court” spanning 10 years. In light of these factors, Gamble’s historical evidence must, at a minimum, be better than middling. And it is not. The English cases are a muddle. Trea- tises offer spotty support. And early state and federal cases are by turns equivocal and downright harmful to Gamble’s position. All told, this evidence does not establish that those who ratified the Fifth Amendment took it to bar successive prosecutions under different sovereigns’ laws— much less do so with enough force to break a chain of precedent linking dozens of cases over 10 years. A Gamble’s core claim is that early English cases reflect an established common-law rule barring domestic prosecu- tion following a prosecution for the same act under a different sovereign’s laws. But from the very dawn of the common law in medieval England until the adoption of the Fifth Amendment in 191, there is not one reported deci- sion barring a prosecution based on a prior trial under foreign law. We repeat: Gamble has not cited and we have not found a single pre-Fifth Amendment case in which a foreign acquittal or conviction barred a second trial in a British or American court. Given this void, Gamble faces a considerable challenge in convincing us that the Fifth Amendment was originally understood to establish such a bar. Attempting to show that such a bar was available, Gamble points to five early English decisions for which we have case reports. We will examine these in some detail, but we note at the outset that they play only a secondary role for Gamble. The foundation of his argument is a decision for which we have no case report: the prosecution in England in Cite as: 58 U. S. (20) 13 Opinion of the Court 16 of a man named Hutchinson. (We have a report of a decision denying Hutchinson bail but no report of his trial.) As told by Gamble, Hutchinson, having been tried and acquitted in a foreign court for a murder committed abroad, was accused of the same homicide in an English tribunal, but the English court held that the foreign prose- cution barred retrial. Everything for Gamble stems from this one unreported decision. To the extent that the cases he cites provide any support for his argument—and for the most part, they do not—those cases purport to take their cue from the Hutchinson episode; the same is true of the treatises on which Gamble relies. So what evidence do we have about what actually hap- pened to Hutchinson? The most direct evidence is a report of his application for bail before the Court of King’s Bench. The report spans all of one sentence: “On Habeas Corpus it appeared the Defendant was committed to Newgate on suspicion of Murder in Por- tugal, which by Mr. Attorny being a Fact out of the Kings Dominions, is not triable by Commission, upon Cap. 2. I. N. 2. but by a Constable and Marshal, and the Court refused to Bail him, & c.” Rex v. Hutchinson, 3 Keb. 85, 84 Eng. Rep. 1011 (16). From this report, all that we can tell about the court’s thinking is that it found no convincing reason to grant bail, as was typical in murder cases.3 The rest of the report concerns claims by an attorney. We are told that he contested the jurisdiction of the commission before which Hutchinson was to be tried, apparently a special commis- sion that would have issued pursuant to a statute enacted under Henry VI.4 The commission lacked jurisdiction, —————— 3 See J. Beattie, Crime and the Courts in England: 1660–1800, pp. 281–282 (86). 4 Although this Act reached conduct committed “out of the King Maj- 14 the attorney seemed to suggest, because the crime had occurred in Portugal and thus “out of the Kings Domin- ions.” The attorney claimed that jurisdiction lay instead with “a Constable and Marshal”—an apparent reference to the High Court of Chivalry, which dealt with treason and murder committed abroad.5 But what, if anything, did the King’s Bench make of the attorney’s jurisdictional claims? And more to the point, what happened after bail was denied? The bail report does not say. If Hutchinson did ultimately appear before the Court of Chivalry—and if that court accepted a plea of prior acquit- tal in Portugal—this would be paltry evidence of any common-law principle, which is what Gamble cites Hutchinson to establish. After all, the High Court of Chivalry was a civil-law court prohibited from proceeding under the common law (unlike every other English court of the time save Admiralty). 8 Ric. 2 ch. 5; see also Squibb 162; at xxv–xxvi (“The essential distinction between the Court of Chivalry and other courts is that it admin- isters justice in relation to those military matters which are not governed by the common law”). Nor would it be any surprise that we have no report of the proceeding; in fact, “[t]here is no report of a case in which a judge of the Court [of Chivalry] has set out the reasons for his decision earlier than the [20th] century.” In the end, we have only two early accounts from judges of what finally became of Hutchinson, and both are indi- rect and shaky. First, they appear in the reports of cases decided in the Court of Chancery more than a half century after Hutchinson. Second, both judges cite only one —————— esties Realme of Englande and other his Graces [Dominions],” Acte concerning the triall of Treasons 1543–1544, ch. 2 (1543– 1544), it applied only to treasons and misprisions of treason—not to homicide, of which Hutchinson was accused. 5 See G. Squibb, The High Court of Chivalry 54, 14–148 (59) (Squibb); 4 Blackstone 26. Cite as: 58 U. S. (20) 15 Opinion of the Court source, and it is of lower authority than their own: namely, an account of Hutchinson given by an interested party (a defendant) in a previous, non-criminal case—an account on which the court in that case did not rely or even com- ment.6 Insofar as our two judges seem to add their own details to the Hutchinson saga, we are not told where they obtained this information or whether it reflects mere guesses as to how gaps in the story should be filled in, decades after the fact. Finally, the two judges’ accounts are not entirely consistent. Still, they are the only early judicial glosses on Hutchinson that we have, so we will work with them. The more extensive account appears in the case of Gage v. Bulkeley, Ridg. T. H. 263, 2 Eng. Rep. 824 (Ch. 144), and what the court said there—far from supporting Gam- ble’s argument—cuts against it. Gage involved a bill in chancery for an account of money deposited with a banker in Paris. The defendants pleaded, as a bar to this lawsuit, “a sentence” “given upon” the same demand in a French court. In addressing this plea, Lord Chancellor Hardwicke first determined that foreign judgments are not binding in an English court of law. Here his reasoning was very similar to that found in our dual-sovereignty decisions. Because each judgment rests on the authority of a particular sovereign, the Chancellor thought, it cannot bind foreign courts, which operate by the power of a differ- ent sovereign. 63–264, 2 Eng. Rep., at 824. —————— 6 See Gage v. Bulkeley, Ridg. T. H. 263, 21, 2 Eng. Rep. 824, 826– (Ch. 144) (citing Beake v. Tyrrell, 1 Show. K. B. 6); Burrows v. Jemino, 2 Str. 33, 25 Eng. Rep. 235 (K. B. 126) (same). As noted, the report cited by both judges—which also appears at 89 Eng. Rep. 411 (K. B. 1688)—mentions Hutchinson only in summarizing a defendant’s argument. So does the only other source cited by either judge. See Gage, Ridg. T. H., 1, 2 Eng. Rep., at 826– (citing Beak v. Thyrwhit, 3 Mod. 4, 8 Eng. Rep. 124 (K. B. 1688)). Below we discuss in detail the case that figures in these two reports. See infra, at and n. 11. 16 Turning next to courts of equity, the Lord Chancellor saw no reason that the rule should be any different; there too, he thought, a foreign judgment is not binding. at 23, 2 Eng. Rep., at But he did allow that in equity a foreign judgment could serve as “evidence, which may affect the right of [a plaintiff] when the cause comes to be heard.” Elaborating on why foreign judgments did not bind English courts, whether of law or equity, the Lord Chan- cellor explained why Hutchinson was “no proof ” to the contrary. In the Chancellor’s telling, Hutchinson was not indicted by the Court of King’s Bench, which could have tried a murder committed in England, because that court had no jurisdiction over a homicide committed in Portugal. Gage, Ridge. T. H., 1, 2 Eng. Rep., at 826–. Instead, Hutchinson was (as the bail decision indicates) before that court on a writ of habeas corpus, and his case “was referred to the judges to know whether a commission should issue” under a statute similar to the one mentioned in the bail decision. 2 Eng. Rep., at ; see 33 Hen. 8 ch. 28 (1541–1542).8 “And,” he explained, “the judges very rightly and mercifully thought not, because he had undergone one trial already.” Gage, Ridg. T. H., at 21–22, 2 Eng. Rep., at This suggests that Hutchinson was spared retrial as a matter of discretion (“merc[y]”)—which must be true if the Chan- —————— 4 Blackstone 262. 8 This statute authorized commissioners to try certain defendants for acts of treason or murder committed “in whatsoever other Shire or place, within the King’s dominions or without.” But “[d]espite the words ‘or without’, contemporary opinion seems not to have regarded the extra-territorial operation of this Act as clear.” Squibb 149. In- deed, the statute cited in the Hutchinson bail report, dated to just two years later, cited lingering “doubtes and questions” about whether English courts could try treason committed abroad (in the course of clarifying that treason and misprisions of treason abroad could indeed be tried in England). ch. 2, I. Cite as: 58 U. S. (20) 1 Opinion of the Court cellor was right that foreign judgments were not binding. Indeed, at least one modern scholar agrees (on other grounds as well) that the result in Hutchinson may have been based on “expediency rather than law.” M. Fried- land, Double Jeopardy 362–363 (69). In the end, then, Gage is doubly damaging to Gamble. First, it squarely rejects the proposition that a litigant in an English court—even a civil litigant in equity—had a right to the benefit of a foreign judgment, a right that the Fifth Amendment might have codified. And second, Gage undermines Gamble’s chief historical example, Hutchinson, by giving a contrary reading of that case— and doing so, no less, in one of the only two judicial ac- counts of Hutchinson that we have from before the Fifth Amendment. The other account appears in Burrows v. Jemino, 2 Str. 33, 93 Eng. Rep. 815 (K. B. 126).9 In Burrows, a party that was sued in England on a bill of exchange sought an injunction against this suit in the Court of Chancery, contending that the suit was barred by the judgment of a court in Italy. In explaining why he would grant the injunction, Lord Chancellor King cited Hutchinson, which he thought had involved an acquittal in Spanish court that was “allowed to be a good bar to any proceedings here.” 2 Str., at 33, 93 Eng. Rep., at 815. This remark, showing that at least one English judge before the found- ing saw Hutchinson as Gamble does, provides a modicum of support for Gamble’s argument. But that support soft- ens just a few lines down in the report, where the Chan- cellor discusses the status of foreign judgments in courts of law in particular (as distinct from courts of equity like —————— 9 This case is also reported as Burrows v. Jemineau in Sel. Ca. t. 69, 25 Eng. Rep. 228 (Ch. 126); as Burroughs v. Jamineau in Mos. 1, 25 Eng. Rep. 235; as Burrows v. Jemineau in 2 Eq. Ca. Abr. 46, 22 Eng. Rep. 405; and as Burrows v. Jemino in 2 Eq. Ca. Abr. 524, 22 Eng. Rep. 443. 18 his own)—i.e., the courts that actually applied the common- law rules later codified by the Fifth Amendment. Here the Chancellor explained that while he personally would have accepted an Italian judgment as barring any suit at law, “other Judges might be of a different opinion.” As a whole, then, the Chancellor’s comments in Burrows can hardly be cited to prove that the common law had made up its mind on this matter; just the opposite. Gamble’s other cases have even less force. The “most instructive” case, he claims, see Brief for Petitioner 13, is the 15 case of King v. Roche, 1 Leach 134,10 168 Eng. Rep. 169 (K.B.), but that is a curious choice since the Roche court does not so much as mention Hutchinson or even tacitly affirm its supposed holding. The defendant in Roche entered two pleas: prior acquittal abroad and not guilty of the charged crime. All that the Roche court held was that, as a procedural matter, it made no sense to charge the jury with both pleas at once, because a finding for Roche on the first (prior acquittal) would, if successful, bar consideration of the second (not guilty). Roche, 1 Leach, at 135, 168 Eng. Rep., at 169. But on our key question—whether a plea based on a foreign acquittal could be successful—the Roche court said absolutely noth- ing; it had no occasion to do so. Before the prosecution could reply to Roche’s plea of prior acquittal, he withdrew it, opting for a full trial. The name Hutchinson does not appear even in the marginalia of the 189 edition of Roche, which existed in 191. See Captain Roche’s Case, 1 Leach at 138–139. Hutchinson is mentioned in connection with Roche only after the Fifth Amendment’s ratification, and only in a compiler’s annotation to the 1800 edition of the Roche case report. See 168 Eng. Rep., at 169, n. (a). That annotation —————— 10 This case is reported as Captain Roche’s Case in 1 Leach 138 (189 ed.) and in 2 Leach 125 (1 ed.). Cite as: 58 U. S. (20) Opinion of the Court in turn cites one case as support for its reading of Hutchinson: Beak v. Thyrwhit, 3 Mod. 4, 8 Eng. Rep. 124 (K. B. 1688). But Beak did not involve a foreign pros- ecution; indeed, it did not involve a prosecution at all. It was an admiralty case for trover and conversion of a ship, and—more to the point—Hutchinson is discussed only in the defendant’s argument in that case, not the court’s response. A report relaying the actual decision in Beak shows that the court ultimately said nothing about the defendant’s Hutchinson argument one way or another. See Beake v. Tyrrell, 1 Show. K. B. 6, 89 Eng. Rep. 411 (1688).11 This same defendant’s argument was the only source of information about Hutchinson on which the Chancellors in Gage and Burrows explicitly relied, as we noted above. All later accounts of Hutchinson seem to stem from this one shallow root. The last of Gamble’s five pre-Fifth Amendment cases, Rex v. Thomas, 1 Lev. 118, 83 Eng. Rep. 326 (K. B. 1664), did not even involve a foreign prosecution. The defendant was indicted for murder in England, and he pleaded a prior acquittal by a Welsh court. But Wales was then part of the “kingdom of England”; its laws were “the laws of England and no other.” 1 Blackstone 94–95; see Thomas, 1 Lev., at 118, 83 Eng. Rep., at 326–32. So the prior trial in Thomas was not under another sovereign’s laws, mak- ing it totally irrelevant for present purposes. Summing up the import of the preratification cases on which Gamble’s argument rests, we have the following: (1) not a single reported case in which a foreign acquittal or conviction barred a later prosecution for the same act in either Britain or America; (2) not a single reported deci- sion in which a foreign judgment was held to be binding in a civil case in a court of law; (3) fragmentary and not —————— 11 This decision is also reported as Beake v. Tirrell, Com. 120, 90 Eng. Rep. 39. 20 entirely consistent evidence about a 1th-century case in which a defendant named Hutchinson, having been tried and acquitted for murder someplace in the Iberian Penin- sula, is said to have been spared a second trial for this crime on some ground, perhaps out of “merc[y],” not as a matter of right; (4) two cases (one criminal, one in admi- ralty) in which a party invoked a prior foreign judgment, but the court did not endorse or rest anything on the party’s reliance on that judgment; and (5) two Court of Chancery cases actually holding that foreign judgments were not (or not generally) treated as barring trial at common law. This is the flimsy foundation in case law for Gamble’s argument that when the Fifth Amendment was ratified, it was well understood that a foreign criminal judgment would bar retrial for the same act. Surveying the pre-Fifth Amendment cases in 59, we concluded that their probative value was “dubious” due to “confused and inadequate reporting.” 359 U.S., at 128, n. 9. Our assessment was accurate then, and the passing years have not made those early cases any clearer or more valuable. B Not to worry, Gamble responds: Whatever the English courts actually did prior to adoption of the Fifth Amend- ment, by that time the early English cases were widely thought to support his view. This is a curious argument indeed. It would have us hold that the Fifth Amendment codified a common-law right that existed in legend, not case law. In any event, the evidence that this right was thought to be settled is very thin. Gamble’s argument is based on treatises, but they are not nearly as helpful as he claims. Alone they do not come close to settling the historical question with enough force to meet Gamble’s particular burden under stare decisis. Gamble begins with Blackstone, but he reads volumes Cite as: 58 U. S. (20) 21 Opinion of the Court into a flyspeck. In the body of his Commentaries, all that Blackstone stated was that successive prosecutions could be barred by prior acquittals by “any court having compe- tent jurisdiction of the offence.” 4 Blackstone 335. This is simply a statement of the general double-jeopardy rule, without a word on separate sovereigns. So Gamble directs our attention to a footnote that appears after the phrase “any court having competent jurisdiction.” The footnote refers to the report of Beak v. Thyrwhit, which, as noted, merely rehearses the argument of the defendant in that case, who in turn mentioned Hutchinson—but not in a criminal prosecution, much less one preceded by a foreign trial. This thread tying Blackstone to Hutchinson—a thread woven through footnotes and reports of reports but not a single statement by a court (or even by a party to an actual prosecution)—is tenuous evidence that Blackstone endorsed Gamble’s reading of Hutchinson. When Gamble’s attorney was asked at argument which other treatises he found most likely to have informed those who ratified the Fifth Amendment, he offered four. See Tr. of Oral Arg. 30–31. But two of the four treatises did not exist when the Fifth Amendment was ratified. See 1 J. Chitty, Criminal Law 458 ; 1 T. Starkie, Crimi- nal Pleading 300–301, n. h (1814). And a third discusses not a single case involving a prior prosecution under for- eign law. See 2 W. Hawkins, Pleas of the Crown 32 (139). That leaves one treatise cited by Gamble that spoke to this issue before ratification, F. Buller, An Introduction to the Law Relative to Trials at Nisi Prius (5th ed. 188). That treatise concerned the trial of civil cases, and its discussion of prior judgments appeared under the heading “Of Evidence in general,” 21. After con- sidering the evidentiary value of such documents as acts of Parliament, deeds, and depositions, Buller addressed what we would later call issue preclusion. Lifting language 22 from an earlier publication, H. Bathurst, The Theory of Evidence 39 (161), Buller wrote that a final judgment was “conclusive Evidence” “against all the World” of the factual determinations underlying the judgment. Buller, Nisi Prius, 45. And it is on this basis that Buller (again lifting from Bathurst) said that even someone acquitted of a crime in Spain “might,” upon indictment in England, “plead the Acquittal in Spain in Bar.” This endorsement of the preclusive effect of a foreign judgment in civil litigation (which even today is not uni- formly accepted in this country12) provides no direct sup- port for Gamble since his prior judgment was one of con- viction, not acquittal. (There is, after all, a major difference between the preclusive effect of a prior acquittal and that of a prior conviction: Only the first would make a subsequent prosecution pointless, by requiring later courts to assume a defendant’s innocence from the start.) And in any case, the fleeting references in the Buller and Bat- —————— 12 Compare Restatement (Fourth) of Foreign Relations Law of the United States 481 (2018) (With a few specified exceptions, “a final, conclusive, and enforceable judgment of a court of a foreign state granting or denying recovery of a sum of money, or determining a legal controversy, is entitled to recognition by courts in the United States”) and Restatement (Second) of Conflict of Laws 98, Comment b. (69) (“In most respects,” judgments rendered in a foreign nation satisfying specified criteria “will be accorded the same degree of recognition to which sister State judgments are entitled”), with, e.g., (recognition of foreign judgments is not required but is a matter of comity); 142–143 (CA2 2001) (same); at 139–140 (“It is well-established that United States courts are not obliged to recognize judgments rendered by a foreign state, but may choose to give res judicata effect to foreign judgments on the basis of comity” (emphasis in original; internal quotation marks omitted)); MacArthur v. San Juan County, 49 F.3d 105, 106 (CA10 200) (“Comity is not an inexorable command and a request for recognition of a foreign judgment may be rebuffed on any number of grounds”); Guinness (CA4 ) (“The effect to be given foreign judgments has therefore histori- cally been determined by more flexible principles of comity”). Cite as: 58 U. S. (20) 23 Opinion of the Court hurst treatises are hardly sufficient to show that the Mem- bers of the First Congress and the state legislators who ratified the Fifth Amendment understood the Double Jeopardy Clause to bar a prosecution in this country after acquittal abroad for the same criminal conduct. Gamble attempts to augment his support by citing treatises published after the Fifth Amendment was adopted.13 And he notes that the Court in District of Columbia v. Heller, took treatises of a similar vintage to shed light on the public understanding in 191 of the right codified by the Second Amendment. But the Heller Court turned to these later treatises only after surveying what it regarded as a wealth of authority for its reading—including the text of the Second Amend- ment and state constitutions. The th-century treatises were treated as mere confirmation of what the Court thought had already been established. Here Gamble’s evidence as to the understanding in 191 of the double jeopardy right is not at all comparable. C When we turn from th-century treatises to th- century state cases, Gamble’s argument appears no stronger. The last time we looked, we found these state cases to be “inconclusive.” They seemed to be evenly split and to “manifest conflict[s] in conscience” rather than confident conclusions about the common law. Indeed, two of those cases manifested nothing more than a misreading of a then-recent decision of ours. We see things no differently today. The distinction between believing successive prosecu- tions by separate sovereigns unjust and holding them —————— 13 See, e.g., F. Wharton, A Treatise on the Law of Homicide in the United States 283 (1855); F. Wharton, A Treatise on the Criminal Law of the United States 13 (1846); L. MacNally, The Rules of Evidence on Pleas of the Crown 428 (1802). 24 unlawful appears right on the face of the first state case that Gamble discusses. In 101 (194), the court opined that it would be “against natural justice” for a man who stole a horse in the Ohio Territory to be punished for theft in North Carolina just for having brought the horse to that State. To avoid this result, the Brown court simply construed North Carolina’s theft law not to reach the defendant’s conduct. But it did so precisely because the defendant otherwise could face two prosecutions for the same act of theft—despite the common-law rule against double jeopardy for the same “offence”—since “the offence against the laws of this State, and the offence against the laws of [the Ohio Territory] are distinct; and satisfaction made for the offence committed against this State, is no satisfaction for the offence com- mitted against the laws there.” Far from undermin- ing the dual-sovereignty rule, Brown expressly affirms it, rejecting outright the idea that a judgment in one sover- eign’s court could “be pleadable in bar to an indictment” in another’s. Other state courts were divided. Massachusetts and Michigan courts thought that at least some trials in either federal or state court could bar prosecution in the other, see ; but those antebellum cases are poor images of the founding-era common law, resting as they do on what we have ex- plained, see 359 U.S., was a misreading of our then-recent decision in 5 Wheat. 1 which we discuss below. A Vermont court did take the same view based on its own analysis of the ques- tion, (1), but just a few years later a Virginia court declared the opposite, (pun- ishment for forgery under both federal and Virginia law is not double punishment for the “same offence” since “the Cite as: 58 U. S. (20) 25 Opinion of the Court law of Virginia punishes the forgery, not because it is an offence against the U. States, but because it is an offence against this commonwealth”). And South Carolina—a perfect emblem of the time—produced cases cutting both ways. See ; State v. This is not the quantum of support for Gamble’s claim about early American common law that might withstand his burden under stare decisis. And once we look beyond the Nation’s earliest years, the body of state-court deci- sions appears even less helpful to Gamble’s position. We aptly summarized those cases in 359 U.S., at 134–136, and need not add to that discussion here.14 D Less useful still, for Gamble’s purposes, are the two early Supreme Court cases on which he relies. In the first, a member of the Pennsylvania militia was tried by a state court-martial for the federal offense of deserting the mili- tia. See The ac- —————— 14 As we put it in –136: “Of the twenty-eight States which have considered the validity of successive state and federal prosecutions as against a challenge of violation of either a state constitutional double-jeopardy provision or a common-law evidentiary rule of autrefois acquit and autrefois convict, twenty-seven have refused to rule that the second prosecution was or would be barred. These States were not bound to follow this Court and its interpretation of the Fifth Amendment. The rules, constitutional, statutory, or common law which bound them, drew upon the same experience as did the Fifth Amendment, but were and are of separate and independent authority. “Not all of the state cases manifest careful reasoning, for in some of them the language concerning double jeopardy is but offhand dictum. But in an array of state cases there may be found full consideration of the arguments supporting and denying a bar to a second prosecution. These courts interpreted their rules as not proscribing a second prose- cution where the first was by a different government and for violation of a different statute.” (Footnote omitted.) 26 cused objected that the state court-martial lacked jurisdic- tion to try this federal offense. Since the offense could be tried in federal court, the defendant argued, allowing the state court-martial to try him for this crime could expose him to successive federal and state prosecutions for the same offense. Justice Washington answered that a ruling in either federal or state court would bar a second trial in the other. See But as we later explained, “that language by Mr. Justice Washington reflected his belief that the state statute imposed state sanc- tions for violation of a federal criminal law. As he viewed the matter, the two trials would not be of simi- lar crimes arising out of the same conduct; they would be of the same crime. Mr. Justice Johnson agreed that if the state courts had become empowered to try the defendant for the federal offense, then such a state trial would bar a federal prosecution. Thus can be cited only for the presence of a bar in a case in which the second trial is for a viola- tion of the very statute whose violation by the same conduct has already been tried in the courts of an- other government empowered to try that question.” 359 U.S., In other words, Justice Washington taught only that the law prohibits two sovereigns (in that case, Pennsylvania and the United States) from both trying an offense against one of them (the United States). That is consistent with our doctrine allowing successive prosecutions for offenses against separate sovereigns. In light of this reading of Houston, the case does not undercut our dual-sovereignty doctrine. It may seem strange to think of state courts as prosecut- ing crimes against the United States, but that is just what state courts and commentators writing within a decade of Houston thought it involved. See, e.g., Cite as: 58 U. S. (20) 2 Opinion of the Court (“In [Houston], the act punished by the law of the State, was certainly and exclusively an offence against the gen- eral Government [whereas h]ere, certainly there is an offence against the State, and a very different one from that committed against the United States” (emphasis added)); 1 J. Kent, Commentaries on American Law 33– 34 (1826) (“[M]any acts of [C]ongress permit jurisdiction, over the offences therein described, to be exercised by state magistrates and courts,” and what Houston bars are successive prosecutions for the same “crime against the United States”). Even the scholar Gamble cites for his cause finds Houston not “[o]n point” because it “was discussing the jurisdiction of the state court to try a crime against the nation and impose a fine payable to the latter government.” Grant, Successive Prosecutions by State and Nation: Common Law and British Empire Comparisons, and n. 2 (56) (citing Warren, Federal Criminal Laws and the State Courts, (15)). Perhaps feeling Houston wobble, Gamble says pre- emptively that if it is “inconclusive,” Brief for Petitioner 26, other cases are clear. But the other federal case on which he leans is worse for his argument. In United 84, we said that an acquittal of piracy in the court of any “civilized State” would bar prosecution in any other nation because piracy, as an “offence within the criminal jurisdiction of all na- tions,” is “punished by all.”15 Ending his quotation from —————— 15 Piracywas understood as a violation of the law of nations, which was seen as common to all. That is why any successive prosecution for piracy, being under the same law, would have been for the same of- fense. See United 53, (quoting definitions of piracy by several ancient and more recent authorities). See also 4 Blackstone 1 (“[T]he crime of piracy, or rob- bery and depredation upon the high seas, is an offence against the universal law of society; a pirate being, according to Sir Edward Coke, 28 Furlong at this point, Gamble gives the impression that Furlong rejects any dual-sovereignty rule. But that im- pression is shattered by the next sentence: “Not so with the crime of murder.” As to that crime, the Furlong Court was “inclined to think that an acquittal” in the United States “would not have been a good plea in a Court of Great Britain.” And that was precisely because murder is “punishable under the laws of each State” rather than falling under some “universal jurisdiction.” When it came to crimes that were understood to offend against more than one sovereign, Furlong treated them as separate offenses— just as we have a dozen times since, and just as we do today. Thus, of the two federal cases that Gamble cites against the dual-sovereignty rule, Houston squares with it and Furlong supports it. Together with the muddle in the early state cases, this undermines Gamble’s claim that the early American bench and bar took the Fifth Amendment to proscribe successive prosecutions by different sover- eigns. And without making a splash in the legal practice of the time, a few early treatises by themselves cannot unsettle almost two centuries of precedent. IV Besides appealing to the remote past, Gamble contends that recent changes—one doctrinal, one practical—blunt the force of stare decisis here. They do not. —————— hostis humani generis [enemies of mankind]. As therefore he has renounced all the benefits of society and government, and has reduced himself afresh to the savage state of nature, by declaring war against all mankind, all mankind must declare war against him: so that every community has a right, by the rule of self-defence, to inflict that pun- ishment upon him, which every individual would in a state of nature have been otherwise entitled to do, for any invasion of his person or personal property” (footnote omitted)). Cite as: 58 U. S. (20) 29 Opinion of the Court A If historical claims form the chorus of Gamble’s argu- ment, his refrain is “incorporation.” In Gamble’s telling, the recognition of the Double Jeopardy Clause’s incorpora- tion against the States, see Benton v. Maryland, 395 U.S. 84, 94 (69), washed away any theoretical foundation for the dual-sovereignty rule, see United (95) (abrogating precedent when “subsequent decisions of this Court” have “eroded” its foundations). But this incorporation-changes-everything argument trades on a false analogy. The analogy Gamble draws is to the evolution of our doctrine on the Fourth Amendment right against unrea- sonable searches and seizures.16 We have long enforced this right by barring courts from relying on evidence gath- ered in an illegal search. Thus, in (14), the Court held that federal prosecutors could not rely on the fruits of an unreasonable search undertaken by federal agents. But what if state or local police conducted a search that would have violated the Fourth Amendment if conducted by federal agents? Before incorporation, the state search would not have violated the Federal Constitution, so federal law would not have barred admission of the resulting evidence in a state prosecution. But by the very same token, under what was termed “the silver-platter doctrine,” state authorities could hand such evidence over to federal prosecutors for use in a federal case. See Once the Fourth Amendment was held to apply to the States as well as the Federal Government, however, the silver-platter doctrine was scuttled. See (60); —————— 16 He draws a similar analogy to the Fifth Amendment right against self-incrimination, but our response to his Fourth Amendment analogy would answer that argument as well. 30 (49). Now the fruits of unreasonable state searches are inadmissible in federal and state courts alike. Gamble contends that the incorporation of the Double Jeopardy Clause should likewise end the dual-sovereignty rule, but his analogy fails. The silver-platter doctrine was based on the fact that the state searches to which it ap- plied did not at that time violate federal law. Once the Fourth Amendment was incorporated against the States, the status of those state searches changed. Now they did violate federal law, so the basis for the silver-platter doc- trine was gone. See 364 U.S., 13 (“The foun- dation upon which the admissibility of state-seized evi- dence in a federal trial originally rested—that unreasonable state searches did not violate the Federal Constitution—thus disappeared [with incorporation]”). By contrast, the premises of the dual-sovereignty doc- trine have survived incorporation intact. Incorporation meant that the States were now required to abide by this Court’s interpretation of the Double Jeopardy Clause. But that interpretation has long included the dual-sovereignty doctrine, and there is no logical reason why incorporation should change it. After all, the doctrine rests on the fact that only same-sovereign successive prosecutions are prosecutions for the “same offense,” see Part and that is just as true after incorporation as before. B If incorporation is the doctrinal shift that Gamble in- vokes to justify a departure from precedent, the practical change he cites is the proliferation of federal criminal law. Gamble says that the resulting overlap of federal and criminal codes heightens the risk of successive prosecu- tions under state and federal law for the same criminal conduct. Thus, Gamble contends, our precedent should yield to “ ‘far-reaching systemic and structural changes’ ” that make our “earlier error all the more egregious and Cite as: 58 U. S. (20) 31 Opinion of the Court harmful.” South Dakota v. Wayfair, Inc., 585 U. S. (2018) (slip op., at 18). But unlike Gamble’s appeal to incorporation, this argument obviously assumes that the dual-sovereignty doctrine was legal error from the start. So the argument is only as strong as Gamble’s argument about the original understanding of double jeopardy rights, an argument that we have found wanting. Insofar as the expansion of the reach of federal criminal law has been questioned on constitutional rather than policy grounds, the argument has focused on whether Congress has overstepped its legislative powers under the Constitution. See, e.g., 5– 4 (2005) (THOMAS, J., dissenting). Eliminating the dual- sovereignty rule would do little to trim the reach of federal criminal law, and it would not even prevent many succes- sive state and federal prosecutions for the same criminal conduct unless we also overruled the long-settled rule that an “offence” for double jeopardy purposes is defined by statutory elements, not by what might be described in a looser sense as a unit of criminal conduct. See Block- (32). Perhaps believing that two revolutionary assaults in the same case would be too much, Gamble has not asked us to overrule Blockburger along with the dual-sovereignty rule. * * * The judgment of the Court of Appeals for the Eleventh Circuit is affirmed. It is so ordered. Cite as: 58 U. S. (20) 1 THOMAS, J., concurring SUPREME COURT OF THE UNITED STATES No. 1–646 TERANCE MARTEZ GAMBLE, PETITIONER v.	2,074
Justice Thomas	concurring	false	Gamble v. United States	2019-06-17	null	https://www.courtlistener.com/opinion/4630088/gamble-v-united-states/	https://www.courtlistener.com/api/rest/v3/clusters/4630088/	2,019	null	null	null	null	I agree that the historical record does not bear out my initial skepticism of the dual-sovereignty doctrine. See Puerto Rico v. Sánchez Valle, 579 U. S. ___ (2016) (GINSBURG, J., joined by THOMAS, J. concurring). The founding generation foresaw very limited potential for overlapping criminal prosecutions by the States and the Federal Government.1 The Founders therefore had no reason to address the double jeopardy question that the Court resolves today. Given their understanding of Con- gress’ limited criminal jurisdiction and the absence of an analogous dual-sovereign system in England, it is difficult to conclude that the People who ratified the Fifth Amend- —————— 1 As the Court suggests, Congress is responsible for the proliferation of duplicative prosecutions for the same offenses by the States and the Federal Government. Ante, at 28. By legislating beyond its limited powers, Congress has taken from the People authority that they never gave. U. S. Const., Art. I, §8; The Federalist No. 22, p. 152 (C. Rossiter ed. 1961) (“all legitimate authority” derives from “the consent of the people” (capitalization omitted)). And the Court has been complicit by blessing this questionable expansion of the Commerce Clause. See, e.g., Gonzales v. Raich, 545 U.S. 1, 57–74 (2005) (THOMAS, J., dissenting). Indeed, it seems possible that much of Title 18, among other parts of the U. S. Code, is premised on the Court’s incorrect interpretation of the Commerce Clause and is thus an incursion into the States’ general criminal jurisdiction and an imposition on the People’s liberty. 2 GAMBLE v. UNITED STATES THOMAS, J., concurring ment understood it to prohibit prosecution by a State and the Federal Government for the same offense. And, of course, we are not entitled to interpret the Constitution to align it with our personal sensibilities about “ ‘unjust’ ” prosecutions. Post, at 6 (GINSBURG, J., dissenting); see Currier v. Virginia, 585 U. S. ___, ___ (2018) (plurality opinion) (slip op., at 16) (“While the growing number of criminal offenses in our statute books may be cause for concern, no one should expect (or want) judges to revise the Constitution to address every social problem they happen to perceive” (citation omitted)). I write separately to address the proper role of the doctrine of stare decisis. In my view, the Court’s typical formulation of the stare decisis standard does not comport with our judicial duty under Article III because it elevates demonstrably erroneous decisions—meaning decisions outside the realm of permissible interpretation—over the text of the Constitution and other duly enacted federal law. It is always “tempting for judges to confuse our own preferences with the requirements of the law,” Obergefell v. Hodges, 576 U. S. ___, ___ (2015) (ROBERTS, C. J., dis- senting) (slip op., at 3), and the Court’s stare decisis doc- trine exacerbates that temptation by giving the venire of respectability to our continued application of demonstra- bly incorrect precedents. By applying demonstrably erro- neous precedent instead of the relevant law’s text—as the Court is particularly prone to do when expanding federal power or crafting new individual rights—the Court exer- cises “force” and “will,” two attributes the People did not give it. The Federalist No. 78, p. 465 (C. Rossiter ed. 1961) (capitalization omitted). We should restore our stare decisis jurisprudence to ensure that we exercise “mer[e] judgment,” ibid., which can be achieved through adherence to the correct, original meaning of the laws we are charged with applying. In my Cite as: 587 U. S. ____ (2019) 3 THOMAS, J., concurring view, anything less invites arbitrariness into judging.2 I The Court currently views stare decisis as a “ ‘principle of policy’ ” that balances several factors to decide whether the scales tip in favor of overruling precedent. Citizens United v. Federal Election Comm’n, 558 U.S. 310, 363 (2010) (quoting Helvering v. Hallock, 309 U.S. 106, 119 (1940)). Among these factors are the “workability” of the standard, “the antiquity of the precedent, the reliance interests at stake, and of course whether the decision was well reasoned.” Montejo v. Louisiana, 556 U.S. 778, 792– 793 (2009). The influence of this last factor tends to ebb and flow with the Court’s desire to achieve a particular end, and the Court may cite additional, ad hoc factors to reinforce the result it chooses. But the shared theme is the need for a “special reason over and above the belief that a prior case was wrongly decided” to overrule a prec- edent. Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 864 (1992). The Court has advanced this view of stare decisis on the ground that “it promotes the evenhanded, predictable, and consistent development of legal principles” and “contributes to the actual and per- ceived integrity of the judicial process.” Payne v. Tennes- see, 501 U.S. 808, 827 (1991). This approach to stare decisis might have made sense in a common-law legal system in which courts systematically developed the law through judicial decisions apart from written law. But our federal system is different. The Constitution tasks the political branches—not the Judici- ary—with systematically developing the laws that govern our society. The Court’s role, by contrast, is to exercise the —————— 2 My focus in this opinion is on this Court’s adherence to its own prec- edents. I make no claim about any obligation of “inferior” federal courts, U. S. Const., Art. III, §1, or state courts to follow Supreme Court precedent. 4 GAMBLE v. UNITED STATES THOMAS, J., concurring “judicial Power,” faithfully interpreting the Constitution and the laws enacted by those branches. Art. III, §1. A A proper understanding of stare decisis in our constitu- tional structure requires a proper understanding of the nature of the “judicial Power” vested in the federal courts. That “Power” is—as Chief Justice Marshall put it—the power “to say what the law is” in the context of a particu- lar “case” or “controversy” before the court. Marbury v. Madison, 1 Cranch 137, 177 (1803); Art. III, §2. Phrased differently, the “judicial Power” “is fundamentally the power to decide cases in accordance with law.” Lawson, The Constitutional Case Against Precedent, 17 Harv. J. L. & Pub. Pol’y 23, 26 (1994) (Lawson). It refers to the duty to exercise “judicial discretion” as distinct from “arbitrary discretion.” The Federalist No. 78, at 468, 471. That means two things, the first prohibitory and the second obligatory. First, the Judiciary lacks “force” (the power to execute the law) and “will” (the power to legis- late). Id., at 465 (capitalization omitted). Those powers are vested in the President and Congress, respectively. “Judicial power is never exercised for the purpose of giving effect to the will of the Judge; always for the purpose of giving effect to the will of the Legislature; or, in other words, to the will of the law.” Osborn v. Bank of United States, 9 Wheat. 738, 866 (1824) (Marshall, C. J.). The Judiciary thus may not “substitute [its] own pleasure to the constitutional intentions of the legislature.” The Federalist No. 78, at 468–469. Second, “judicial discretion” requires the “liquidat[ion]” or “ascertain[ment]” of the meaning of the law. Id., at 467–468; see id., No. 37. At the time of the founding, “to liquidate” meant “to make clear or plain”; “to render un- ambiguous; to settle (differences, disputes).” Nelson, Stare Decisis and Demonstrably Erroneous Precedents, 87 Va. Cite as: 587 U. S. ____ (2019) 5 THOMAS, J., concurring L. Rev. 1, 13, and n. 35 (2001) (Nelson) (quoting 8 Oxford English Dictionary 1012 (2d ed. 1991); (internal quotation marks omitted)). Therefore, judicial discretion is not the power to “alter” the law; it is the duty to correctly “ex- pound” it. Letter from J. Madison to N. Trist (Dec. 1831), in 9 The Writings of James Madison 477 (G. Hunt ed. 1910) (Writings of Madison). B This understanding of the judicial power had long been accepted at the time of the founding. But the federalist structure of the constitutional plan had significant impli- cations for the exercise of that power by the newly created Federal Judiciary. Whereas the common-law courts of England discerned and defined many legal principles in the first instance, the Constitution charged federal courts primarily with applying a limited body of written laws articulating those legal principles. This shift profoundly affects the application of stare decisis today. Stare decisis has its pedigree in the unwritten common law of England. As Blackstone explained, the common law included “[e]stablished customs” and “[e]stablished rules and maxims” that were discerned and articulated by judges. 1 W. Blackstone, Commentaries on the Laws of England 68–69 (1765) (Blackstone). In the common-law system, stare decisis played an important role because “judicial decisions [were] the principal and most authorita- tive evidence, that [could] be given, of the existence of such a custom as shall form a part of the common law.” Id., at 69. Accordingly, “precedents and rules must be fol- lowed, unless flatly absurd or unjust,” because a judge must issue judgments “according to the known laws and customs of the land” and not “according to his private sentiments” or “own private judgment.” Id., at 69–70. In other words, judges were expected to adhere to precedents because they embodied the very law the judges were 6 GAMBLE v. UNITED STATES THOMAS, J., concurring bound to apply. “[C]ommon law doctrines, as articulated by judges, were seen as principles that had been discovered rather than new laws that were being made.” 3–4 G. White, The Marshall Court and Cultural Change, 1815–35, History of the Supreme Court of the United States 129 (1988).3 “It was the application of the dictates of natural justice, and of cultivated reason, to particular cases.” 1 J. Kent, Com- mentaries on American Law 439 (1826) (Kent); see id., at 439–440 (the common law is “ ‘not the product of the wis- dom of some one man, or society of men, in any one age; but of the wisdom, counsel, experience, and observation, of many ages of wise and observing men’ ”). The common law therefore rested on “unarticulated social processes to mobilize and coordinate knowledge” gained primarily through “the social experience of the many,” rather than the “specifically articulated reason of the few.” T. Sowell, A Conflict of Visions: Ideological Origins of Political Struggles 49, 42 (1987). In other words, the common law was based in the collective, systematic development of the law through reason. See id., at 49–55. Importantly, however, the common law did not view precedent as unyielding when it was “most evidently contrary to reason” or “divine law.” Blackstone 69–70. The founding generation recognized that a “judge may mistake the law.” Id., at 71; see also 1 Kent 444 (“Even a series of decisions are not always conclusive evidence of what is law”). And according to Blackstone, judges should disregard precedent that articulates a rule incorrectly when necessary “to vindicate the old [rule] from misrepre- —————— 3 Our founding documents similarly rest on the premise that certain fundamental principles are both knowable and objectively true. See, e.g., Declaration of Independence (“We hold these truths to be self- evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness”). Cite as: 587 U. S. ____ (2019) 7 THOMAS, J., concurring sentation.” Blackstone 70; see also 1 Kent 443 (“If . . . any solemnly adjudged case can be shown to be founded in error, it is no doubt the right and the duty of the judges who have a similar case before them, to correct the error”). He went further: When a “former decision is manifestly absurd or unjust” or fails to conform to reason, it is not simply “bad law,” but “not law” at all. Blackstone 70 (emphasis). This view—that demonstrably erroneous “blunders” of prior courts should be corrected—was ac- cepted by state courts throughout the 19th century. See, e.g., McDowell v. Oyer, 21 Pa. 417, 423 (1853); Guild v. Eager, 17 Mass. 615, 622 (1822). This view of precedent implies that even common-law judges did not act as legislators, inserting their own pref- erences into the law as it developed. Instead, consistent with the nature of the judicial power, common-law judges were tasked with identifying and applying objective prin- ciples of law—discerned from natural reason, custom, and other external sources—to particular cases. See Nelson 23–27. Thus, the founding generation understood that an important function of the Judiciary in a common-law system was to ascertain what reason or custom required; that it was possible for courts to err in doing so; and that it was the Judiciary’s responsibility to “examin[e] without fear, and revis[e] without reluctance,” any “hasty and crude decisions” rather than leaving “the character of [the] law impaired, and the beauty and harmony of the system destroyed by the perpetuity of error.” 1 Kent 444. Federal courts today look to different sources of law when exercising the judicial power than did the common- law courts of England. The Court has long held that “[t]here is no federal general common law.” Erie R. Co. v. Tompkins, 304 U.S. 64, 78 (1938). Instead, the federal courts primarily interpret and apply three bodies of fed- eral positive law—the Constitution; federal statutes, rules, 8 GAMBLE v. UNITED STATES THOMAS, J., concurring and regulations; and treaties.4 That removes most (if not all) of the force that stare decisis held in the English common-law system, where judicial precedents were among the only documents identifying the governing “customs” or “rules and maxims.” Blackstone 68. We operate in a system of written law in which courts need not—and generally cannot—articulate the law in the first instance. See U. S. Const., Art. I, §1 (vesting “[a]ll legislative Pow- ers” in Congress); Art. 1, §7 (describing the bicameralism and presentment process). The Constitution, federal statutes, and treaties are the law, and the systematic development of the law is accomplished democratically. Our judicial task is modest: We interpret and apply writ- ten law to the facts of particular cases. Underlying this legal system is the key premise that words, including written laws, are capable of objective, ascertainable meaning. As I have previously explained, “[m]y vision of the process of judging is unabashedly based on the proposition that there are right and wrong answers to legal questions.” Thomas, Judging, 45 U. Kan. L. Rev. 1, 5 (1996). Accordingly, judicial decisions may incorrectly interpret the law, and when they do, subsequent courts must confront the question when to depart from them. C Given that the primary role of federal courts today is to interpret legal texts with ascertainable meanings, prece- dent plays a different role in our exercise of the “judicial Power” than it did at common law. In my view, if the Court encounters a decision that is demonstrably errone- ous—i.e., one that is not a permissible interpretation of —————— 4 There are certain exceptions to this general rule, including areas of law in which federal common law has historically been understood to govern (e.g., admiralty) and well-established judicial doctrines that are applied in the federal courts (e.g., issue preclusion). Additionally, federal courts apply state law where it governs. Cite as: 587 U. S. ____ (2019) 9 THOMAS, J., concurring the text—the Court should correct the error, regardless of whether other factors support overruling the precedent. Federal courts may (but need not) adhere to an incorrect decision as precedent, but only when traditional tools of legal interpretation show that the earlier decision adopted a textually permissible interpretation of the law. A de- monstrably incorrect judicial decision, by contrast, is tantamount to making law, and adhering to it both disre- gards the supremacy of the Constitution and perpetuates a usurpation of the legislative power. 1 When faced with a demonstrably erroneous precedent, my rule is simple: We should not follow it. This view of stare decisis follows directly from the Constitution’s su- premacy over other sources of law—including our own precedents. That the Constitution outranks other sources of law is inherent in its nature. See A. Amar, America’s Constitution 5 (2005) (explaining that the Constitution is a constitutive document); Kesavan, The Three Tiers of Federal Law, 100 NW.U. L. Rev. 1479, 1499, n. 99 (2006) (arguing that “[i]t is unnecessary for the Constitution to specify that it is superior to other law because it is higher law made by We the People—and the only such law”). The Constitution’s supremacy is also reflected in its require- ment that all judicial officers, executive officers, Con- gressmen, and state legislators take an oath to “support this Constitution.” Art. VI, cl. 3; see also Art. II, §1, cl. 8 (requiring the President to “solemnly swear (or affirm)” to “preserve, protect and defend the Constitution of the United States”). Notably, the Constitution does not man- date that judicial officers swear to uphold judicial prece- dents. And the Court has long recognized the supremacy of the Constitution with respect to executive action and “legislative act[s] repugnant to” it. Marbury, 1 Cranch, at 177; Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 10 GAMBLE v. UNITED STATES THOMAS, J., concurring 579, 587–589 (1952); see also The Federalist No. 78, at 467 (“No legislative act, therefore, contrary to the Constitu- tion, can be valid”). The same goes for judicial precedent. The “judicial Power” must be understood in light of “the Constitution’s status as the supreme legal document” over “lesser sources of law.” Lawson, 29–30. This status necessarily limits “the power of a court to give legal effect to prior judicial decisions” that articulate demonstrably erroneous inter- pretations of the Constitution because those prior deci- sions cannot take precedence over the Constitution itself. Ibid. Put differently, because the Constitution is supreme over other sources of law, it requires us to privilege its text over our own precedents when the two are in conflict. I am aware of no legitimate reason why a court may privi- lege a demonstrably erroneous interpretation of the Con- stitution over the Constitution itself.5 The same principle applies when interpreting statutes and other sources of law: If a prior decision demonstrably erred in interpreting such a law, federal judges should exercise the judicial power—not perpetuate a usurpation of the legislative power—and correct the error. A contrary rule would permit judges to “substitute their own pleas- ure” for the law. The Federalist No. 78, at 468; see id., at —————— 5 Congress and the Executive likewise must independently evaluate the constitutionality of their actions; they take an oath to uphold the Constitution, not to blindly follow judicial precedent. In the context of a judicial case or controversy, however, their determinations do not bind the Judiciary in performing its constitutionally assigned role. See, e.g., Zivotofsky v. Clinton, 566 U.S. 189, 197 (2012) (noting that there is “no exclusive commitment to the Executive of the power to determine the constitutionality of a statute”); INS v. Chadha, 462 U.S. 919, 944 (1983) (Congress’ and President’s endorsement of “legislative veto” “sharpened rather than blunted” Court’s judicial review). Of course, consistent with the nature of the “judicial Power,” the federal courts’ judgments bind all parties to the case, including Government officials and agencies. Cite as: 587 U. S. ____ (2019) 11 THOMAS, J., concurring 466 (“ ‘[T]here is no liberty if the power of judging be not separated from the legislative and executive powers’ ”). In sum, my view of stare decisis requires adherence to decisions made by the People—that is, to the original understanding of the relevant legal text—which may not align with decisions made by the Court. Accord, Marshall v. Baltimore & Ohio R. Co., 16 How. 314, 343–344 (1854) (Daniel, J., dissenting) (“Wherever the Constitution com- mands, discretion terminates” because continued adher- ence to “palpable error” is a “violation of duty, an usurpa- tion”); Commonwealth v. Posey, 8 Va. 109, 116 (1787) (opinion of Tazewell, J.) (“[A]lthough I venerate prece- dents, I venerate the written law more”). Thus, no “ ‘spe- cial justification’ ” is needed for a federal court to depart from its own, demonstrably erroneous precedent. Halli- burton Co. v. Erica P. John Fund, Inc., 573 U.S. 258, 266 (2014); see Nelson 62. Considerations beyond the correct legal meaning, including reliance, workability, and whether a precedent “has become well embedded in national culture,” S. Breyer, Making our Democracy Work: A Judge’s View 152 (2010), are inapposite. In our constitu- tional structure, our role of upholding the law’s original meaning is reason enough to correct course.6 2 Although precedent does not supersede the original meaning of a legal text, it may remain relevant when it is not demonstrably erroneous. As discussed, the “judicial —————— 6I am not suggesting that the Court must independently assure itself that each precedent relied on in every opinion is correct as a matter of original understanding. We may, consistent with our constitutional duty and the Judiciary’s historical practice, proceed on the understand- ing that our predecessors properly discharged their constitutional role until we have reason to think otherwise—as, for example, when a party raises the issue or a previous opinion persuasively critiques the dis- puted precedent. 12 GAMBLE v. UNITED STATES THOMAS, J., concurring Power” requires the Court to clarify and settle—or, as Madison and Hamilton put it, to “liquidate”—the meaning of written laws. The Federalist No. 78, at 468 (“[I]t is the province of the courts to liquidate and fix [the] meaning and operation [of contradictory laws]”); The Federalist No. 37, at 229 (explaining that the indeterminacy of laws requires courts to “liquidat[e] and ascertai[n]” their mean- ing “by a series of particular discussions and adjudica- tions”). This need to liquidate arises from the inability of human language to be fully unequivocal in every context. Written laws “have a range of indeterminacy,” and rea- sonable people may therefore arrive at different conclu- sions about the original meaning of a legal text after employing all relevant tools of interpretation. See Nelson 11, 14. It is within that range of permissible interpreta- tions that precedent is relevant. If, for example, the meaning of a statute has been “liquidated” in a way that is not demonstrably erroneous (i.e., not an impermissible interpretation of the text), the judicial policy of stare deci- sis permits courts to constitutionally adhere to that inter- pretation, even if a later court might have ruled another way as a matter of first impression. Of course, a subse- quent court may nonetheless conclude that an incorrect precedent should be abandoned, even if the precedent might fall within the range of permissible interpretations. But nothing in the Constitution requires courts to take that step. Put another way, there is room for honest disagreement, even as we endeavor to find the correct answer. Compare ___ U. S. ___, 358–371 ( ) (THOMAS, J., concurring in judg- ment) (concluding that the “historical evidence from the framing” supports the view that the First Amend- ment permitted anonymous speech), with id., at 371–385 (Scalia, J., dissenting) (concluding that the First Amendment does not protect anonymous speech based on a century of practice in the States). Reasonable jurists can apply Cite as: 587 U. S. ____ (2019) 13 THOMAS, J., concurring traditional tools of construction and arrive at different interpretations of legal texts. “[L]iquidating” indeterminacies in written laws is far removed from expanding or altering them. See Writings of Madison 477 (explaining that judicial decisions cannot “alter” the Constitution, only “expound” it). The original meaning of legal texts “usually . . . is easy to discern and simple to apply.” A. Scalia, Common Law Courts in a Civil-Law System, in A Matter of Interpretation: Federal Courts and the Law 45 (A. Gutmann ed. 1997). And even in difficult cases, that the original meaning is not obvious at first blush does not excuse the Court from diligently pursuing that meaning. Stopping the interpretive inquiry short—or allowing personal views to color it—permits courts to substitute their own preferences over the text. Although the law may be, on rare occasion, truly ambigu- ous—meaning susceptible to multiple, equally correct legal meanings—the law never “runs out” in the sense that a Court may adopt an interpretation beyond the bounds of permissible construction.7 In that regard, a legal text is not capable of multiple permissible interpreta- tions merely because discerning its original meaning “requires a taxing inquiry.” Pauley v. BethEnergy Mines, Inc., 501 U.S. 680, 707 (1991) (Scalia, J., dissenting). This case is a good example. The historical record pre- sents knotty issues about the original meaning of the Fifth Amendment, and JUSTICE GORSUCH does an admirable job arguing against our longstanding interpretation of the Double Jeopardy Clause. Although JUSTICE GORSUCH identifies support for his view in several postratification treatises, see post, at 13–15 (dissenting opinion), I do not —————— 7 Indeed, if a statute contained no objective meaning, it might consti- tute an improper delegation of legislative power to the Judicial Branch, among other problems. See Touby v. United States, 500 U.S. 160, 165 (1991) (discussing the nondelegation doctrine). 14 GAMBLE v. UNITED STATES THOMAS, J., concurring find these treatises conclusive without a stronger showing that they reflected the understanding of the Fifth Amendment at the time of ratification. At that time, the common law certainly had not coalesced around this view, see ante, at 10–21, and petitioner has not pointed to con- temporaneous judicial opinions or other evidence estab- lishing that his view was widely shared. This lack of evidence, coupled with the unique two-sovereign federalist system created by our Constitution, leaves petitioner to rely on a general argument about “liberty.” Ultimately, I am not persuaded that our precedent is incorrect as an original matter, much less demonstrably erroneous. 3 Although this case involves a constitutional provision, I would apply the same stare decisis principles to matters of statutory interpretation. I am not aware of any legal (as opposed to practical) basis for applying a heightened version of stare decisis to statutory-interpretation deci- sions. Statutes are easier to amend than the Constitution, but our judicial duty is to apply the law to the facts of the case, regardless of how easy it is for the law to change. Cf. Clark v. Martinez, 543 U.S. 371, 402 (2005) (THOMAS, J., dissenting) (explaining that “the realities of the legislative process” will “often preclude readopting the original mean- ing of a statute that we have upset”). Moreover, to the extent the Court has justified statutory stare decisis based on legislative inaction, this view is based on the “patently false premise that the correctness of statutory construc- tion is to be measured by what the current Congress de- sires, rather than by what the law as enacted meant.” Johnson v. Transportation Agency, Santa Clara Cty., 480 U.S. 616, 671 (1987) (Scalia, J., dissenting). Finally, even if congressional silence could be meaningfully understood as acquiescence, it still falls short of the bicameralism and presentment required by Article I and therefore is not a Cite as: 587 U. S. ____ (2019) 15 THOMAS, J., concurring “valid way for our elected representatives to express their collective judgment.” Nelson 76. II For the reasons explained above, the Court’s multifactor approach to stare decisis invites conflict with its constitu- tional duty. Whatever benefits may be seen to inhere in that approach—e.g., “stability” in the law, preservation of reliance interests, or judicial “humility,” Tr. of Oral Arg. 20, 41–42—they cannot overcome that fundamental flaw. In any event, these oft-cited benefits are frequently illusory. The Court’s multifactor balancing test for invok- ing stare decisis has resulted in policy-driven, “arbitrary discretion.” The Federalist No. 78, at 471. The inquiry attempts to quantify the unquantifiable and, by frequently sweeping in subjective factors, provides a ready means of justifying whatever result five Members of the Court seek to achieve. See Holder v. Hall, 512 U.S. 874, 943–944 (1994) (THOMAS, J., concurring in judgment) (describing a “ ‘totality of circumstances’ ” test as “an empty incanta- tion—a mere conjurer’s trick”); Lawrence v. Texas, 539 U.S. 558, 577 (2003) (acknowledging that stare decisis is “ ‘a principle of policy and not a mechanical formula’ ”); see also Casey, 505 U.S., at 854–856 (invoking the “kind of reliance that would lend a special hardship to the conse- quences of overruling and add inequity to the cost of repu- diation”). These are not legal questions with right and wrong answers; they are policy choices. See, e.g., A. Gold- berg, Equal Justice: The Warren Era of the Supreme Court 96 (1971) (“[T]his concept of stare decisis both justi- fies the overruling involved in the expansion of human liberties during the Warren years and counsels against the future overruling of the Warren Court libertarian decisions”). Members of this Court have lamented the supposed “uncertainty” created when the Court overrules its prece- 16 GAMBLE v. UNITED STATES THOMAS, J., concurring dent. See Franchise Tax Bd. of Cal. v. Hyatt, ante, at ___– ___ (BREYER, J., dissenting) (slip op., at 12–13). But see Lawrence, supra, at 577 (asserting that not overruling precedent would “caus[e] uncertainty”). As I see it, we would eliminate a significant amount of uncertainty and provide the very stability sought if we replaced our malle- able balancing test with a clear, principled rule grounded in the meaning of the text. The true irony of our modern stare decisis doctrine lies in the fact that proponents of stare decisis tend to invoke it most fervently when the precedent at issue is least defen- sible. See, e.g., Holder, supra, at 944–945 (opinion of THOMAS, J.) (“Stare decisis should not bind the Court to an interpretation of the Voting Rights Act that was based on a flawed method of statutory construction from its incep- tion” and that has created “an irreconcilable conflict” between the Act and the Equal Protection Clause and requires “methodically carving the country into racially designated electoral districts”). It is no secret that stare decisis has had a “ratchet-like effect,” cementing certain grievous departures from the law into the Court’s juris- prudence. Goldberg, supra, at 96. Perhaps the most egregious example of this illegitimate use of stare decisis can be found in our “substantive due process” jurispru- dence. McDonald v. Chicago, 561 U.S. 742, 811 (2010) (THOMAS, J., concurring in part and concurring in judg- ment). The Court does not seriously defend the “legal fiction” of substantive due process as consistent with the original understanding of the Due Process Clause. Ibid. And as I have explained before, “this fiction is a particu- larly dangerous one” because it “lack[s] a guiding principle to distinguish ‘fundamental’ rights that warrant protec- tion from nonfundamental rights that do not.” Ibid. Unfortunately, the Court has doggedly adhered to these erroneous substantive-due-process precedents again and again, often to disastrous ends. See, e.g., Stenberg v. Cite as: 587 U. S. ____ (2019) 17 THOMAS, J., concurring Carhart, 530 U.S. 914, 982 (2000) (THOMAS, J., dissent- ing) (“The standard set forth in the Casey plurality has no historical or doctrinal pedigree” and “is the product of its authors’ own philosophical views about abortion” with “no origins in or relationship to the Constitution”). Likewise, the Court refuses to reexamine its jurisprudence about the Privileges or Immunities Clause, thereby relegating a “ ‘clause in the constitution’ ” “ ‘to be without effect.’ ” McDonald, supra, at 813 (quoting Marbury, 1 Cranch, at 174); see Timbs v. Indiana, 586 U. S. ___, ___ (2019) (THOMAS, J., concurring in judgment) (criticizing the Court’s incorporation doctrine through a clause that ad- dresses procedures). No subjective balancing test can justify such a wholesale disregard of the People’s individ- ual rights protected by the Fourteenth Amendment. * * * Our judicial duty to interpret the law requires adher- ence to the original meaning of the text. For that reason, we should not invoke stare decisis to uphold precedents that are demonstrably erroneous. Because petitioner and the dissenting opinions have not shown that the Court’s dual-sovereignty doctrine is incorrect, much less demon- strably erroneous, I concur in the majority’s opinion. Cite as: 587 U. S. ____ (2019) 1 GINSBURG, J., dissenting SUPREME COURT OF THE UNITED STATES _________________ No. 17–646 _________________ TERANCE MARTEZ GAMBLE, PETITIONER v. UNITED STATES ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT [June, 17, 2019] JUSTICE GINSBURG, dissenting Terance Martez Gamble pleaded guilty in Alabama state court to both possession of a firearm by a person convicted of “a crime of violence” and drug possession, and was sentenced to ten years’ imprisonment, all but one year suspended. Apparently regarding Alabama’s sentence as too lenient, federal prosecutors pursued a parallel charge, possession of a firearm by a convicted felon, in violation of federal law. Gamble again pleaded guilty and received nearly three more years in prison. Had either the Federal Government or Alabama brought the successive prosecutions, the second would have violated Gamble’s right not to be “twice put in jeopardy . . . for the same offence.” U. S. Const., Amdt. 5, cl. 2. Yet the Federal Government was able to multiply Gamble’s time in prison because of the doctrine that, for double jeopardy purposes, identical criminal laws enacted by “separate sovereigns” are different “offence[s].” I dissent from the Court’s adherence to that misguided doctrine. Instead of “fritter[ing] away [Gamble’s] libert[y] upon a metaphysical subtlety, two sovereignties,” Grant, The Lanza Rule of Successive Prosecutions, 32 Colum. L. Rev. 1309, 1331 (1932), I would hold that the Double Jeopardy Clause bars “successive prosecutions [for the same offense] by parts of the whole USA.” Puerto Rico v. 2 GAMBLE v. UNITED STATES GINSBURG, J., dissenting Sánchez Valle, 579 U. S. ___, ___ (2016) (GINSBURG, J., concurring) (slip op., at 2). I A Gamble urges that the Double Jeopardy Clause incorpo- rates English common law. That law, he maintains, rec- ognized a foreign acquittal or conviction as a bar to retrial in England for the same offense. See Brief for Petitioner 11–15. The Court, in turn, strives mightily to refute Gamble’s account of the common law. See ante, at 8–21. This case, however, does not call for an inquiry into whether and when an 18th-century English court would have credited a foreign court’s judgment in a criminal case. Gamble was convicted in both Alabama and the United States, jurisdictions that are not foreign to each other. English court decisions regarding the respect due to a foreign nation’s judgment are therefore inapposite. B In United States v. Lanza, 260 U.S. 377 (1922), this Court held that “an act denounced as a crime by both national and state sovereignties is an offense against the peace and dignity of both and may be punished by each.” Id., at 382. Decades later, a sharply divided Court reaf- firmed this separate-sovereigns doctrine. Abbate v. United States, 359 U.S. 187 (1959); Bartkus v. Illinois, 359 U.S. 121 (1959). I would not cling to those ill-advised decisions. 1 Justification for the separate-sovereigns doctrine cen- ters on the word “offence”: An “offence,” the argument runs, is the violation of a sovereign’s law, the United States and each State are separate sovereigns, ergo suc- cessive state and federal prosecutions do not place a de- fendant in “jeopardy . . . for the same offence.” Ante, at 1, 3–4 (internal quotation marks omitted). Cite as: 587 U. S. ____ (2019) 3 GINSBURG, J., dissenting This “compact syllogism” is fatally flawed. See Braun, Praying to False Sovereigns: The Rule Permitting Succes- sive Prosecutions in the Age of Cooperative Federalism, 20 Am. J. Crim. L. 1, 25 (1992). The United States and its constituent States, unlike foreign nations, are “kindred systems,” “parts of ONE WHOLE.” The Federalist No. 82, p. 493 (C. Rossiter ed. 1961) (A. Hamilton). They compose one people, bound by an overriding Federal Constitution. Within that “WHOLE,” the Federal and State Govern- ments should be disabled from accomplishing together “what neither government [could] do alone—prosecute an ordinary citizen twice for the same offence.” Amar & Marcus, Double Jeopardy Law After Rodney King, 95 Colum. L. Rev. 1, 2 (1995). The notion that the Federal Government and the States are separate sovereigns overlooks a basic tenet of our federal system. The doctrine treats governments as sover- eign, with state power to prosecute carried over from years predating the Constitution. See Heath v. Alabama, 474 U.S. 82, 89 (1985) (citing Lanza, 260 U.S., at 382). In the system established by the Federal Constitution, however, “ultimate sovereignty” resides in the governed. Arizona State Legislature v. Arizona Independent Redistricting Comm’n, 576 U. S. ___, ___ (2015) (slip op., at 31); Martin v. Hunter’s Lessee, 1 Wheat. 304, 324–325 (1816); Braun, supra, at 26–30. Insofar as a crime offends the “peace and dignity” of a sovereign, Lanza, 260 U.S., at 382, that “sovereign” is the people, the “original fountain of all legitimate authority,” The Federalist No. 22, at 152 (A. Hamilton); see Note, Double Prosecution by State and Federal Governments: Another Exercise in Federalism, 80 Harv. L. Rev. 1538, 1542 (1967). States may be separate, but their populations are part of the people composing the United States. In our “compound republic,” the division of authority between the United States and the States was meant to 4 GAMBLE v. UNITED STATES GINSBURG, J., dissenting operate as “a double security [for] the rights of the people.” The Federalist No. 51, at 323 (J. Madison); see Bond v. United States, 564 U.S. 211, 221 (2011). The separate- sovereigns doctrine, however, scarcely shores up people’s rights. Instead, it invokes federalism to withhold liberty. See Bartkus, 359 U.S., at 155–156 (Black, J., dissenting).1 It is the doctrine’s premise that each government has— and must be allowed to vindicate—a distinct interest in enforcing its own criminal laws. That is a peculiar way to look at the Double Jeopardy Clause, which by its terms safeguards the “person” and restrains the government. See, e.g., id., at 155; United States v. All Assets of G.P.S. Automotive Corp., 66 F.3d 483, 498 (CA2 1995) (Calabresi, J., concurring). The Double Jeopardy Clause embodies a principle, “deeply ingrained” in our system of justice, “that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subject- ing him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.” Green v. United States, 355 U.S. 184, 187–188 (1957). “Looked at from the standpoint of the individual who is being prosecuted,” the liberty-denying potential of succes- sive prosecutions, when Federal and State Governments prosecute in tandem, is the same as it is when either prosecutes twice. Bartkus, 359 U.S., at 155 (Black, J., —————— 1 The Court writes that federalism “advances individual liberty in many ways,” but does not always do so. Ante, at 10 (citing, for example, state prohibition of activities authorized by federal law). The analogy of the separate-sovereigns doctrine to dual regulation is inapt. The former erodes a constitutional safeguard against successive prosecu- tions, while the Constitution contains no guarantee against dual regulation. Cite as: 587 U. S. ____ (2019) 5 GINSBURG, J., dissenting dissenting). 2 I turn, next, to further justifications the Court has supplied for the separate-sovereigns doctrine. None should survive close inspection. a One rationale emphasizes that the Double Jeopardy Clause originally restrained only the Federal Government and did not bar successive state prosecutions. Id., at 124; Lanza, 260 U.S., at 382; Fox v. Ohio, 5 How. 410, 434–435 (1847). Incorporation of the Clause as a restraint on action by the States, effected in Benton v. Maryland, 395 U.S. 784 (1969), has rendered this rationale obsolete. b Another justification is precedent. In adopting and reaffirming the separate-sovereigns doctrine, the Court relied on dicta from 19th-century opinions. See Abbate, 359 U.S., at 190–193; Bartkus, 359 U.S., at 129–132; Lanza, 260 U.S., at 382–384. The persuasive force of those opinions is diminished by their dubious reasoning. See supra, at 2–4. While drawing upon dicta from prior opinions, the Court gave short shrift to contrary authority. See Braun, supra, at 20–23. First, the Framers of the Bill of Rights voted down an amendment that would have permitted the Federal Gov- ernment to reprosecute a defendant initially tried by a State. 1 Annals of Cong. 753 (1789); J. Sigler, Double Jeopardy: The Development of a Legal and Social Policy 30–31 (1969). But cf. ante, at 4–5. Nevermind that this amendment failed; the Court has attributed to the Clause the very meaning the First Congress refrained from adopting.2 —————— 2 The Court sees this history as poor evidence of congressional intent. 6 GAMBLE v. UNITED STATES GINSBURG, J., dissenting Second, early American courts regarded with disfavor the prospect of successive prosecutions by the Federal and State Governments. In Houston v. Moore, 5 Wheat. 1 (1820), Justice Washington expressed concern that such prosecutions would be “very much like oppression, if not worse”; he noted that an acquittal or conviction by one sovereign “might be pleaded in bar of the prosecution before the other.” Id., at 23, 31. The Court today follows Bartkus in distinguishing Justice Washington’s opinion as addressing only the “strange” situation in which a State has prosecuted an offense “against the United States.” Ante, at 24; see Bartkus, 359 U.S., at 130. The distinction is thin, given the encompassing language in Justice Wash- ington’s opinion. Justice Story’s dissent, moreover, de- clared successive prosecutions for the same offense contrary to “the principles of the common law, and the genius of our free government.” Houston, 5 Wheat., at 72. Most of the early state decisions cited by the parties regarded successive federal-state prosecutions as unac- ceptable. See Bartkus, 359 U.S., at 158–159 (Black, J., dissenting). Only one court roundly endorsed a separate- sovereigns theory. Hendrick v. Commonwealth, 32 Va. 707, 713 (1834). The Court reads the state-court opinions as “distin[guishing] between believing successive prosecu- tions by separate sovereigns unjust and holding them unlawful.” Ante, at 21. I would not read the Double Jeop- ardy Clause to tolerate “unjust” prosecutions and believe early American courts would have questioned the Court’s distinction. See State v. Brown, 2 N. C. 100, 101 (1794) —————— See ante, at 4. On another day, the Court looked to the First Congress’ rejection of proposed amendments as instructive. See Cook v. Gralike, 531 U.S. 510, 521 (2001). Moreover, a “compelling” principle of statu- tory interpretation is “the proposition that Congress does not intend sub silentio to enact statutory language that it has earlier discarded in favor of other language.” INS v. Cardoza-Fonseca, 480 U.S. 421, 442– 443 (1987) (internal quotation marks omitted). Cite as: 587 U. S. ____ (2019) 7 GINSBURG, J., dissenting (allowing successive prosecutions would be “against natu- ral justice, and therefore I cannot believe it to be law”). c Finally, the Court has reasoned that the separate- sovereigns doctrine is necessary to prevent either the Federal Government or a State from encroaching on the other’s law enforcement prerogatives. Without this doc- trine, the Court has observed, the Federal Government, by prosecuting first, could bar a State from pursuing more serious charges for the same offense, Bartkus, 359 U.S., at 137; and conversely, a State, by prosecuting first, could effectively nullify federal law, Abbate, 359 U.S., at 195. This concern envisions federal and state prosecutors work- ing at cross purposes, but cooperation between authorities is the norm. See Bartkus, 359 U.S., at 123. And when federal-state tension exists, successive prosecutions for the federal and state offenses may escape double-jeopardy blockage under the test prescribed in Blockburger v. United States, 284 U.S. 299 (1932). Offenses are distinct, Block- burger held, if “each . . . requires proof of a fact which the other does not.” Id., at 304; see Amar, 95 Colum. L. Rev., at 45–46 (violation of federal civil rights law and state assault law are different offenses). II The separate-sovereigns doctrine, I acknowledge, has been embraced repeatedly by the Court. But “[s]tare decisis is not an inexorable command.” Payne v. Tennes- see, 501 U.S. 808, 828 (1991). Our adherence to precedent is weakest in cases “concerning procedural rules that implicate fundamental constitutional protections.” Alleyne v. United States, 570 U.S. 99, 116, n. 5 (2013). Gamble’s case fits that bill. I would lay the “separate-sovereigns” rationale to rest for the aforesaid reasons and those stated below. 8 GAMBLE v. UNITED STATES GINSBURG, J., dissenting A First, Benton v. Maryland, 395 U.S. 784, which ren- dered the double jeopardy safeguard applicable to the States, left the separate-sovereigns doctrine the sort of “legal last-man-standing for which we sometimes depart from stare decisis.” Kimble v. Marvel Entertainment, LLC, 576 U. S. ___, ___ (2015) (slip op., at 11). In adopting and cleaving to the doctrine, the Court stressed that originally, the Clause restrained only federal, not state, action. E.g., Bartkus, 359 U.S., at 127; Lanza, 260 U.S., at 382; cf. Abbate, 359 U.S., at 190. Before incorporation, the separate-sovereigns doctrine had a certain logic: Without a carve-out for successive prosecutions by separate sovereigns, the Double Jeopardy Clause would have barred the Federal Government from prosecuting a defendant previously tried by a State, but would not have prevented a State from prosecuting a defendant previously tried by the Federal Government. Incorporation changed this. Operative against the States since 1969, when the Court decided Benton v. Maryland, 395 U.S. 784, the double jeopardy proscription now ap- plies to the Federal Government and the States alike. The remaining office of the separate-sovereigns doctrine, then, is to enable federal and state prosecutors, proceeding one after the other, to expose defendants to double jeopardy. The separate-sovereigns doctrine’s persistence contrasts with the fate of analogous dual-sovereignty doctrines following application of the rights at issue to the States. Prior to incorporation of the Fourth Amendment as a restraint on state action, federal prosecutors were free to use evidence obtained illegally by state or local officers, then served up to federal officers on a “silver platter.” See Elkins v. United States, 364 U.S. 206, 208–214 (1960); Weeks v. United States, 232 U.S. 383, 398 (1914). Once the Fourth Amendment applied to the States, abandon- ment of this “silver platter doctrine” was impelled by Cite as: 587 U. S. ____ (2019) 9 GINSBURG, J., dissenting “principles of logic” and the reality that, from the perspec- tive of the victim of an unreasonable search and seizure, it mattered not at all “whether his constitutional right ha[d] been invaded by a federal agent or by a state officer.” Elkins, 364 U.S., at 208, 215. As observed by Justice Harlan, Elkins’ abandonment of a separate-sovereigns exception to the exclusionary rule was at odds with reten- tion of the separate-sovereigns doctrine for double jeop- ardy purposes in Abbate and Bartkus. See 364 U.S., at 252. Similarly, before incorporation of the Fifth Amendment privilege against self-incrimination, the Court held that the privilege did not prevent state authorities from com- pelling a defendant to provide testimony that could in- criminate him or her in another jurisdiction. Knapp v. Schweitzer, 357 U.S. 371, 375–381 (1958). After applica- tion of the self-incrimination privilege to the States, the Court concluded that its prior position was incompatible with the “policies and purposes” of the privilege. Murphy v. Waterfront Comm’n of N. Y. Harbor, 378 U.S. 52, 55, 77 (1964). No longer, the Court held, could a witness “ be whipsawed into incriminating himself under both state and federal law even though the constitutional privilege against self-incrimination is applicable to each.” Id., at 55 (internal quotation marks omitted; emphasis added). The Court regards incorporation as immaterial because application of the Double Jeopardy Clause to the States did not affect comprehension of the word “offence” to mean the violation of one sovereign’s law. Ante, at 28. But the Court attributed a separate-sovereigns meaning to “of- fence” at least in part because the Double Jeopardy Clause did not apply to the States. See supra, at 5. Incorporation of the Clause should prompt the Court to consider the protection against double jeopardy from the defendant’s perspective and to ask why each of two governments within the United States should be permitted to try a 10 GAMBLE v. UNITED STATES GINSBURG, J., dissenting defendant once for the same offense when neither could try him or her twice. B The expansion of federal criminal law has exacerbated the problems created by the separate-sovereigns doctrine. Ill effects of the doctrine might once have been tempered by the limited overlap between federal and state criminal law. All Assets of G.P.S. Automotive, 66 F.3d, at 498 (Calabresi, J., concurring). In the last half century, how- ever, federal criminal law has been extended pervasively into areas once left to the States. Guerra, The Myth of Dual Sovereignty: Multijurisdictional Drug Law Enforce- ment and Double Jeopardy, 73 N. C. L. Rev. 1159, 1165– 1192 (1995); Brief for Sen. Orrin Hatch as Amicus Curiae 8–14. This new “age of ‘cooperative federalism,’ [in which] the Federal and State Governments are waging a united front against many types of criminal activity,” Murphy, 378 U.S., at 55–56, provides new opportunities for federal and state prosecutors to “join together to take a second bite at the apple,” All Assets of G.P.S. Automotive, 66 F.3d, at 498 (Calabresi, J., concurring).3 This situation might be less troublesome if successive prosecutions oc- curred only in “instances of peculiar enormity, or where the public safety demanded extraordinary rigor.” Fox, 5 How., at 435. The run-of-the-mill felon-in-possession charges Gamble encountered indicate that, in practice, successive prosecutions are not limited to exceptional circumstances. —————— 3 Bartkus v. Illinois, 359 U.S. 121 (1959), left open the prospect that the double jeopardy ban might block a successive state prosecution that was merely “a sham and a cover for a federal prosecution.” Id., at 123– 124. The Courts of Appeals have read this potential exception narrowly. See, e.g., United States v. Figueroa-Soto, 938 F.2d 1015, 1019 (CA9 1991). Cite as: 587 U. S. ____ (2019) 11 GINSBURG, J., dissenting C Against all this, there is little to be said for keeping the separate-sovereigns doctrine. Gamble’s case “do[es] not implicate the reliance interests of private parties.” Al- leyne, 570 U.S., at 119 (SOTOMAYOR, J., concurring). The closest thing to a reliance interest would be the interest Federal and State Governments have in avoiding avulsive changes that could complicate ongoing prosecutions. As the Court correctly explains, however, overruling the separate-sovereigns doctrine would not affect large num- bers of cases. See ante, at 28–29. In prosecutions based on the same conduct, federal and state prosecutors will often charge offenses having different elements, charges that, under Blockburger, will not trigger double jeopardy protection. See Poulin, Double Jeopardy Protection From Successive Prosecution: A Proposed Approach, 92 Geo. L. J. 1183, 1244–1245 (2004); Brief for Criminal Defense Experts as Amici Curiae 5–11.4 Notably, the Federal Government has endeavored to reduce the incidence of “same offense” prosecutions. Un- der the Petite policy adopted by the Department of Jus- tice,5 the Department will pursue a federal prosecution —————— 4 The Government implies there is tension between Gamble’s position and Blockburger v. United States, 284 U.S. 299 (1932). Brief for United States 18–20. But if courts can ascertain how laws enacted by different Congresses fare under Blockburger, they can do the same for laws enacted by Congress and a State, or by two States. But cf. Amar & Marcus, Double Jeopardy Law After Rodney King, 95 Colum. L. Rev. 1, 39 (1995) (“Because different legislatures often do not work from the same linguistic building blocks, they will not use uniform language to describe an offence, even when each is indeed outlawing the same crime with the same elements.”). 5 Formally the “Dual and Successive Prosecution Policy,” the policy is popularly known by the name of the case in which this Court first took note of it, Petite v. United States, 361 U.S. 529 (1960) (per curiam). The policy was adopted “in direct response to” Bartkus and Abbate v. United States, 359 U.S. 187 (1959). Rinaldi v. United States, 434 U.S. 12 GAMBLE v. UNITED STATES GINSBURG, J., dissenting “based on substantially the same act(s) or transaction(s)” previously prosecuted in state court only if the first prose- cution left a “substantial federal interest . . . demonstrably unvindicated” and a Department senior official authorizes the prosecution. Dept. of Justice, Justice Manual §9– 2.031(A) (rev. July 2009). At oral argument, the Government estimated that it authorizes only “about a hundred” Petite prosecutions per year. Tr. of Oral Arg. 54. But see id., at 65–66 (referring to the “few hundred successive prosecutions that [the Government] bring[s] each year”). Some of these prosecu- tions will not implicate double jeopardy, as the Petite policy uses a same-conduct test that is broader than the Blockburger same-elements test. And more than half the States forbid successive prosecutions for all or some of- fenses previously resolved on the merits by a federal or state court. Brief for Criminal Defense Experts as Amici Curiae 4–5, and n. 2 (collecting statutes); Brief for State of Texas et al. as Amici Curiae 28–30, and nn. 6–15 (same). In short, it is safe to predict that eliminating the separate- sovereigns doctrine would spark no large disruption in practice. * * * The separate-sovereigns doctrine, especially since Bartkus and Abbate, has been subject to relentless criti- cism by members of the bench, bar, and academy. Never- theless, the Court reaffirms the doctrine, thereby dimin- ishing the individual rights shielded by the Double Jeopardy Clause. Different parts of the “WHOLE” United States should not be positioned to prosecute a defendant a second time for the same offense. I would reverse Gam- ble’s federal conviction. —————— 22, 28 (1977) (per curiam). Cite as: 587 U. S. ____ (2019) 1 GORSUCH, J., dissenting SUPREME COURT OF THE UNITED STATES _________________ No. 17–646 _________________ TERANCE MARTEZ GAMBLE, PETITIONER v.	I agree that the historical record does not bear out my initial skepticism of the dual-sovereignty doctrine. See Puerto Rico v. Sánchez Valle, 579 U. S. (2016) (GINSBURG, J., joined by THOMAS, J. concurring). The founding generation foresaw very limited potential for overlapping criminal prosecutions by the States and the Federal Government.1 The Founders therefore had no reason to address the double jeopardy question that the Court resolves today. Given their understanding of Con- gress’ limited criminal jurisdiction and the absence of an analogous dual-sovereign system in England, it is difficult to conclude that the People who ratified the Fifth Amend- —————— 1 As the Court suggests, Congress is responsible for the proliferation of duplicative prosecutions for the same offenses by the States and the Federal Government. Ante, at 28. By legislating beyond its limited powers, Congress has taken from the People authority that they never gave. U. S. Const., Art. I, The Federalist No. 22, p. 152 (C. Rossiter ed. 1961) (“all legitimate authority” derives from “the consent of the people” ). And the Court has been complicit by blessing this questionable expansion of the Commerce Clause. See, e.g., Indeed, it seems possible that much of Title 18, among other parts of the U. S. Code, is premised on the Court’s incorrect interpretation of the Commerce Clause and is thus an incursion into the States’ general criminal jurisdiction and an imposition on the People’s liberty. 2 GAMBLE v. UNITED STATES THOMAS, J., concurring ment understood it to prohibit prosecution by a State and the Federal Government for the same offense. And, of course, we are not entitled to interpret the Constitution to align it with our personal sensibilities about “ ‘unjust’ ” prosecutions. Post, at 6 (GINSBURG, J., dissenting); see Currier v. Virginia, 585 U. S. (2018) (plurality opinion) (slip op., at 16) (“While the growing number of criminal offenses in our statute books may be cause for concern, no one should expect (or want) judges to revise the Constitution to address every social problem they happen to perceive” (citation omitted)). I write separately to address the proper role of the doctrine of stare decisis. In my view, the Court’s typical formulation of the stare decisis standard does not comport with our judicial duty under Article III because it elevates demonstrably erroneous decisions—meaning decisions outside the realm of permissible interpretation—over the text of the Constitution and other duly enacted federal law. It is always “tempting for judges to confuse our own preferences with the requirements of the law,” Obergefell v. Hodges, 576 U. S. (2015) (ROBERTS, C. J., dis- senting) (slip op., at 3), and the Court’s stare decisis doc- trine exacerbates that temptation by giving the venire of respectability to our continued application of demonstra- bly incorrect precedents. By applying demonstrably erro- neous precedent instead of the relevant law’s text—as the Court is particularly prone to do when expanding federal power or crafting new individual rights—the Court exer- cises “force” and “will,” two attributes the People did not give it. The Federalist No. p. 465 (C. Rossiter ed. 1961) We should restore our stare decisis jurisprudence to ensure that we exercise “mer[e] judgment,” ib which can be achieved through adherence to the correct, original meaning of the laws we are charged with applying. In my Cite as: 587 U. S. (2019) 3 THOMAS, J., concurring view, anything less invites arbitrariness into judging.2 I The Court currently views stare decisis as a “ ‘principle of policy’ ” that balances several factors to decide whether the scales tip in favor of overruling precedent. Citizens (quoting (1940)). Among these factors are the “workability” of the standard, “the antiquity of the precedent, the reliance interests at stake, and of course whether the decision was well reasoned.” 792– 793 (2009). The influence of this last factor tends to ebb and flow with the Court’s desire to achieve a particular end, and the Court may cite additional, ad hoc factors to reinforce the result it chooses. But the shared theme is the need for a “special reason over and above the belief that a prior case was wrongly decided” to overrule a prec- edent. Planned Parenthood of Southeastern The Court has advanced this view of stare decisis on the ground that “it promotes the evenhanded, predictable, and consistent development of legal principles” and “contributes to the actual and per- ceived integrity of the judicial process.” Payne v. Tennes- see, This approach to stare decisis might have made sense in a common-law legal system in which courts systematically developed the law through judicial decisions apart from written law. But our federal system is different. The Constitution tasks the political branches—not the Judici- ary—with systematically developing the laws that govern our society. The Court’s role, by contrast, is to exercise the —————— 2 My focus in this opinion is on this Court’s adherence to its own prec- edents. I make no claim about any obligation of “inferior” federal courts, U. S. Const., Art. III, or state courts to follow Supreme Court precedent. 4 GAMBLE v. UNITED STATES THOMAS, J., concurring “judicial Power,” faithfully interpreting the Constitution and the laws enacted by those branches. Art. III, A A proper understanding of stare decisis in our constitu- tional structure requires a proper understanding of the nature of the “judicial Power” vested in the federal courts. That “Power” is—as Chief Justice Marshall put it—the power “to say what the law is” in the context of a particu- lar “case” or “controversy” before the court. Marbury v. Madison, ; Art. III, Phrased differently, the “judicial Power” “is fundamentally the power to decide cases in accordance with law.” Lawson, The Constitutional Case Against Precedent, 17 Harv. J. L. & Pub. Pol’y 23, 26 (1994) (Lawson). It refers to the duty to exercise “judicial discretion” as distinct from “arbitrary discretion.” The Federalist No. at 468, 471. That means two things, the first prohibitory and the second obligatory. First, the Judiciary lacks “force” (the power to execute the law) and “will” (the power to legis- late). Those powers are vested in the President and Congress, respectively. “Judicial power is never exercised for the purpose of giving effect to the will of the Judge; always for the purpose of giving effect to the will of the Legislature; or, in other words, to the will of the law.” The Judiciary thus may not “substitute [its] own pleasure to the constitutional intentions of the legislature.” The Federalist No. at 468–469. Second, “judicial discretion” requires the “liquidat[ion]” or “ascertain[ment]” of the meaning of the law. at 467–468; see No. 37. At the time of the founding, “to liquidate” meant “to make clear or plain”; “to render un- ambiguous; to settle (differences, disputes).” Nelson, Stare Decisis and Demonstrably Erroneous Precedents, 87 Va. Cite as: 587 U. S. (2019) 5 THOMAS, J., concurring L. Rev. 1, 13, and n. 35 (Nelson) ; (internal quotation marks omitted)). Therefore, judicial discretion is not the power to “alter” the law; it is the duty to correctly “ex- pound” it. Letter from J. Madison to N. Trist (Dec. 1831), in 9 The Writings of James Madison 477 (G. Hunt ed. 1910) (Writings of Madison). B This understanding of the judicial power had long been accepted at the time of the founding. But the federalist structure of the constitutional plan had significant impli- cations for the exercise of that power by the newly created Federal Judiciary. Whereas the common-law courts of England discerned and defined many legal principles in the first instance, the Constitution charged federal courts primarily with applying a limited body of written laws articulating those legal principles. This shift profoundly affects the application of stare decisis today. Stare decisis has its pedigree in the unwritten common law of England. As Blackstone explained, the common law included “[e]stablished customs” and “[e]stablished rules and maxims” that were discerned and articulated by judges. 1 W. Blackstone, Commentaries on the Laws of England 68–69 (1765) (Blackstone). In the common-law system, stare decisis played an important role because “judicial decisions [were] the principal and most authorita- tive evidence, that [could] be given, of the existence of such a custom as shall form a part of the common law.” at 69. Accordingly, “precedents and rules must be fol- lowed, unless flatly absurd or unjust,” because a judge must issue judgments “according to the known laws and customs of the land” and not “according to his private sentiments” or “own private judgment.” at 69–70. In other words, judges were expected to adhere to precedents because they embodied the very law the judges were 6 GAMBLE v. UNITED STATES THOMAS, J., concurring bound to apply. “[C]ommon law doctrines, as articulated by judges, were seen as principles that had been discovered rather than new laws that were being made.” 3–4 G. White, The Marshall Court and Cultural Change, 1815–35, History of the Supreme Court of the United States 129 (1988).3 “It was the application of the dictates of natural justice, and of cultivated reason, to particular cases.” 1 J. Kent, Com- mentaries on American Law 439 (1826) (Kent); see at 439–440 (the common law is “ ‘not the product of the wis- dom of some one man, or society of men, in any one age; but of the wisdom, counsel, experience, and observation, of many ages of wise and observing men’ ”). The common law therefore rested on “unarticulated social processes to mobilize and coordinate knowledge” gained primarily through “the social experience of the many,” rather than the “specifically articulated reason of the few.” T. Sowell, A Conflict of Visions: Ideological Origins of Political Struggles 49, 42 (1987). In other words, the common law was based in the collective, systematic development of the law through reason. See at 49–55. Importantly, however, the common law did not view precedent as unyielding when it was “most evidently contrary to reason” or “divine law.” Blackstone 69–70. The founding generation recognized that a “judge may mistake the law.” ; see also 1 Kent 444 (“Even a series of decisions are not always conclusive evidence of what is law”). And according to Blackstone, judges should disregard precedent that articulates a rule incorrectly when necessary “to vindicate the old [rule] from misrepre- —————— 3 Our founding documents similarly rest on the premise that certain fundamental principles are both knowable and objectively true. See, e.g., Declaration of Independence (“We hold these truths to be self- evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness”). Cite as: 587 U. S. (2019) 7 THOMAS, J., concurring sentation.” Blackstone 70; see also 1 Kent 443 (“If any solemnly adjudged case can be shown to be founded in error, it is no doubt the right and the duty of the judges who have a similar case before them, to correct the error”). He went further: When a “former decision is manifestly absurd or unjust” or fails to conform to reason, it is not simply “bad law,” but “not law” at all. Blackstone 70 (emphasis). This view—that demonstrably erroneous “blunders” of prior courts should be corrected—was ac- cepted by state courts throughout the 19th century. See, e.g., ; Guild v. Eager, This view of precedent implies that even common-law judges did not act as legislators, inserting their own pref- erences into the law as it developed. Instead, consistent with the nature of the judicial power, common-law judges were tasked with identifying and applying objective prin- ciples of law—discerned from natural reason, custom, and other external sources—to particular cases. See Nelson 23–27. Thus, the founding generation understood that an important function of the Judiciary in a common-law system was to ascertain what reason or custom required; that it was possible for courts to err in doing so; and that it was the Judiciary’s responsibility to “examin[e] without fear, and revis[e] without reluctance,” any “hasty and crude decisions” rather than leaving “the character of [the] law impaired, and the beauty and harmony of the system destroyed by the perpetuity of error.” 1 Kent 444. Federal courts today look to different sources of law when exercising the judicial power than did the common- law courts of England. The Court has long held that “[t]here is no federal general common law.” Erie R. Co. v. Tompkins, Instead, the federal courts primarily interpret and apply three bodies of fed- eral positive law—the Constitution; federal statutes, rules, 8 GAMBLE v. UNITED STATES THOMAS, J., concurring and regulations; and treaties.4 That removes most (if not all) of the force that stare decisis held in the English common-law system, where judicial precedents were among the only documents identifying the governing “customs” or “rules and maxims.” Blackstone 68. We operate in a system of written law in which courts need not—and generally cannot—articulate the law in the first instance. See U. S. Const., Art. I, (vesting “[a]ll legislative Pow- ers” in Congress); Art. 1, (describing the bicameralism and presentment process). The Constitution, federal statutes, and treaties are the law, and the systematic development of the law is accomplished democratically. Our judicial task is modest: We interpret and apply writ- ten law to the facts of particular cases. Underlying this legal system is the key premise that words, including written laws, are capable of objective, ascertainable meaning. As I have previously explained, “[m]y vision of the process of judging is unabashedly based on the proposition that there are right and wrong answers to legal questions.” Thomas, Judging, 45 U. Kan. L. Rev. 1, 5 (1996). Accordingly, judicial decisions may incorrectly interpret the law, and when they do, subsequent courts must confront the question when to depart from them. C Given that the primary role of federal courts today is to interpret legal texts with ascertainable meanings, prece- dent plays a different role in our exercise of the “judicial Power” than it did at common law. In my view, if the Court encounters a decision that is demonstrably errone- ous—i.e., one that is not a permissible interpretation of —————— 4 There are certain exceptions to this general rule, including areas of law in which federal common law has historically been understood to govern (e.g., admiralty) and well-established judicial doctrines that are applied in the federal courts (e.g., issue preclusion). Additionally, federal courts apply state law where it governs. Cite as: 587 U. S. (2019) 9 THOMAS, J., concurring the text—the Court should correct the error, regardless of whether other factors support overruling the precedent. Federal courts may (but need not) adhere to an incorrect decision as precedent, but only when traditional tools of legal interpretation show that the earlier decision adopted a textually permissible interpretation of the law. A de- monstrably incorrect judicial decision, by contrast, is tantamount to making law, and adhering to it both disre- gards the supremacy of the Constitution and perpetuates a usurpation of the legislative power. 1 When faced with a demonstrably erroneous precedent, my rule is simple: We should not follow it. This view of stare decisis follows directly from the Constitution’s su- premacy over other sources of law—including our own precedents. That the Constitution outranks other sources of law is inherent in its nature. See A. Amar, America’s Constitution 5 (explaining that the Constitution is a constitutive document); Kesavan, The Three Tiers of Federal Law, 100 NW.U. L. Rev. 1479, 1499, n. 99 (2006) (arguing that “[i]t is unnecessary for the Constitution to specify that it is superior to other law because it is higher law made by We the People—and the only such law”). The Constitution’s supremacy is also reflected in its require- ment that all judicial officers, executive officers, Con- gressmen, and state legislators take an oath to “support this Constitution.” Art. VI, cl. 3; see also Art. II, cl. 8 (requiring the President to “solemnly swear (or affirm)” to “preserve, protect and defend the Constitution of the United States”). Notably, the Constitution does not man- date that judicial officers swear to uphold judicial prece- dents. And the Court has long recognized the supremacy of the Constitution with respect to executive action and “legislative act[s] repugnant to” it. Marbury, 1 Cranch, at ; Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 10 GAMBLE v. UNITED STATES THOMAS, J., concurring 579, 587–589 (1952); see also The Federalist No. at 467 (“No legislative act, therefore, contrary to the Constitu- tion, can be valid”). The same goes for judicial precedent. The “judicial Power” must be understood in light of “the Constitution’s status as the supreme legal document” over “lesser sources of law.” Lawson, 29–30. This status necessarily limits “the power of a court to give legal effect to prior judicial decisions” that articulate demonstrably erroneous inter- pretations of the Constitution because those prior deci- sions cannot take precedence over the Constitution itself. Put differently, because the Constitution is supreme over other sources of law, it requires us to privilege its text over our own precedents when the two are in conflict. I am aware of no legitimate reason why a court may privi- lege a demonstrably erroneous interpretation of the Con- stitution over the Constitution itself.5 The same principle applies when interpreting statutes and other sources of law: If a prior decision demonstrably erred in interpreting such a law, federal judges should exercise the judicial power—not perpetuate a usurpation of the legislative power—and correct the error. A contrary rule would permit judges to “substitute their own pleas- ure” for the law. The Federalist No. at 468; see at —————— 5 Congress and the Executive likewise must independently evaluate the constitutionality of their actions; they take an oath to uphold the Constitution, not to blindly follow judicial precedent. In the context of a judicial case or controversy, however, their determinations do not bind the Judiciary in performing its constitutionally assigned role. See, e.g., (noting that there is “no exclusive commitment to the Executive of the power to determine the constitutionality of a statute”); (1983) (Congress’ and President’s endorsement of “legislative veto” “sharpened rather than blunted” Court’s judicial review). Of course, consistent with the nature of the “judicial Power,” the federal courts’ judgments bind all parties to the case, including Government officials and agencies. Cite as: 587 U. S. (2019) 11 THOMAS, J., concurring 466 (“ ‘[T]here is no liberty if the power of judging be not separated from the legislative and executive powers’ ”). In sum, my view of stare decisis requires adherence to decisions made by the People—that is, to the original understanding of the relevant legal text—which may not align with decisions made by the Court. Accord, Marshall v. Baltimore & Ohio R. Co., (Daniel, J., dissenting) (“Wherever the Constitution com- mands, discretion terminates” because continued adher- ence to “palpable error” is a “violation of duty, an usurpa- tion”); (17) (opinion of Tazewell, J.) (“[A]lthough I venerate prece- dents, I venerate the written law more”). Thus, no “ ‘spe- cial justification’ ” is needed for a federal court to depart from its own, demonstrably erroneous precedent. Halli- burton (2014); see Nelson 62. Considerations beyond the correct legal meaning, including reliance, workability, and whether a precedent “has become well embedded in national culture,” S. Breyer, Making our Democracy Work: A Judge’s View 152 are inapposite. In our constitu- tional structure, our role of upholding the law’s original meaning is reason enough to correct course.6 2 Although precedent does not supersede the original meaning of a legal text, it may remain relevant when it is not demonstrably erroneous. As discussed, the “judicial —————— 6I am not suggesting that the Court must independently assure itself that each precedent relied on in every opinion is correct as a matter of original understanding. We may, consistent with our constitutional duty and the Judiciary’s historical practice, proceed on the understand- ing that our predecessors properly discharged their constitutional role until we have reason to think otherwise—as, for example, when a party raises the issue or a previous opinion persuasively critiques the dis- puted precedent. 12 GAMBLE v. UNITED STATES THOMAS, J., concurring Power” requires the Court to clarify and settle—or, as Madison and Hamilton put it, to “liquidate”—the meaning of written laws. The Federalist No. at 468 (“[I]t is the province of the courts to liquidate and fix [the] meaning and operation [of contradictory laws]”); The Federalist No. 37, at 229 (explaining that the indeterminacy of laws requires courts to “liquidat[e] and ascertai[n]” their mean- ing “by a series of particular discussions and adjudica- tions”). This need to liquidate arises from the inability of human language to be fully unequivocal in every context. Written laws “have a range of indeterminacy,” and rea- sonable people may therefore arrive at different conclu- sions about the original meaning of a legal text after employing all relevant tools of interpretation. See Nelson 11, 14. It is within that range of permissible interpreta- tions that precedent is relevant. If, for example, the meaning of a statute has been “liquidated” in a way that is not demonstrably erroneous (i.e., not an impermissible interpretation of the text), the judicial policy of stare deci- sis permits courts to constitutionally adhere to that inter- pretation, even if a later court might have ruled another way as a matter of first impression. Of course, a subse- quent court may nonetheless conclude that an incorrect precedent should be abandoned, even if the precedent might fall within the range of permissible interpretations. But nothing in the Constitution requires courts to take that step. Put another way, there is room for honest disagreement, even as we endeavor to find the correct answer. Compare U. S. 358–371 ( ) (THOMAS, J., concurring in judg- ment) (concluding that the “historical evidence from the framing” supports the view that the First Amend- ment permitted anonymous speech), with at 371–385 (concluding that the First Amendment does not protect anonymous speech based on a century of practice in the States). Reasonable jurists can apply Cite as: 587 U. S. (2019) 13 THOMAS, J., concurring traditional tools of construction and arrive at different interpretations of legal texts. “[L]iquidating” indeterminacies in written laws is far removed from expanding or altering them. See Writings of Madison 477 (explaining that judicial decisions cannot “alter” the Constitution, only “expound” it). The original meaning of legal texts “usually is easy to discern and simple to apply.” A. Scalia, Common Law Courts in a Civil-Law System, in A Matter of Interpretation: Federal Courts and the Law 45 (A. Gutmann ed. 1997). And even in difficult cases, that the original meaning is not obvious at first blush does not excuse the Court from diligently pursuing that meaning. Stopping the interpretive inquiry short—or allowing personal views to color it—permits courts to substitute their own preferences over the text. Although the law may be, on rare occasion, truly ambigu- ous—meaning susceptible to multiple, equally correct legal meanings—the law never “runs out” in the sense that a Court may adopt an interpretation beyond the bounds of permissible construction.7 In that regard, a legal text is not capable of multiple permissible interpreta- tions merely because discerning its original meaning “requires a taxing inquiry.” This case is a good example. The historical record pre- sents knotty issues about the original meaning of the Fifth Amendment, and JUSTICE GORSUCH does an admirable job arguing against our longstanding interpretation of the Double Jeopardy Clause. Although JUSTICE GORSUCH identifies support for his view in several postratification treatises, see post, at 13–15 (dissenting opinion), I do not —————— 7 Indeed, if a statute contained no objective meaning, it might consti- tute an improper delegation of legislative power to the Judicial Branch, among other problems. See (discussing the nondelegation doctrine). 14 GAMBLE v. UNITED STATES THOMAS, J., concurring find these treatises conclusive without a stronger showing that they reflected the understanding of the Fifth Amendment at the time of ratification. At that time, the common law certainly had not coalesced around this view, see ante, at 10–21, and petitioner has not pointed to con- temporaneous judicial opinions or other evidence estab- lishing that his view was widely shared. This lack of evidence, coupled with the unique two-sovereign federalist system created by our Constitution, leaves petitioner to rely on a general argument about “liberty.” Ultimately, I am not persuaded that our precedent is incorrect as an original matter, much less demonstrably erroneous. 3 Although this case involves a constitutional provision, I would apply the same stare decisis principles to matters of statutory interpretation. I am not aware of any legal (as opposed to practical) basis for applying a heightened version of stare decisis to statutory-interpretation deci- sions. Statutes are easier to amend than the Constitution, but our judicial duty is to apply the law to the facts of the case, regardless of how easy it is for the law to change. Cf. (THOMAS, J., dissenting) (explaining that “the realities of the legislative process” will “often preclude readopting the original mean- ing of a statute that we have upset”). Moreover, to the extent the Court has justified statutory stare decisis based on legislative inaction, this view is based on the “patently false premise that the correctness of statutory construc- tion is to be measured by what the current Congress de- sires, rather than by what the law as enacted meant.” Johnson v. Transportation Agency, Santa Clara Cty., 480 U.S. 616, 671 (1987) Finally, even if congressional silence could be meaningfully understood as acquiescence, it still falls short of the bicameralism and presentment required by Article I and therefore is not a Cite as: 587 U. S. (2019) 15 THOMAS, J., concurring “valid way for our elected representatives to express their collective judgment.” Nelson 76. II For the reasons explained above, the Court’s multifactor approach to stare decisis invites conflict with its constitu- tional duty. Whatever benefits may be seen to inhere in that approach—e.g., “stability” in the law, preservation of reliance interests, or judicial “humility,” Tr. of Oral Arg. 20, 41–42—they cannot overcome that fundamental flaw. In any event, these oft-cited benefits are frequently illusory. The Court’s multifactor balancing test for invok- ing stare decisis has resulted in policy-driven, “arbitrary discretion.” The Federalist No. at 471. The inquiry attempts to quantify the unquantifiable and, by frequently sweeping in subjective factors, provides a ready means of justifying whatever result five Members of the Court seek to achieve. See 943– (1994) (THOMAS, J., concurring in judgment) (describing a “ ‘totality of circumstances’ ” test as “an empty incanta- tion—a mere conjurer’s trick”); v. Texas, 539 U.S. 558, 577 (2003) (acknowledging that stare decisis is “ ‘a principle of policy and not a mechanical formula’ ”); see also –856 (invoking the “kind of reliance that would lend a special hardship to the conse- quences of overruling and add inequity to the cost of repu- diation”). These are not legal questions with right and wrong answers; they are policy choices. See, e.g., A. Gold- berg, Equal Justice: The Warren Era of the Supreme Court 96 (1) (“[T]his concept of stare decisis both justi- fies the overruling involved in the expansion of human liberties during the Warren years and counsels against the future overruling of the Warren Court libertarian decisions”). Members of this Court have lamented the supposed “uncertainty” created when the Court overrules its prece- 16 GAMBLE v. UNITED STATES THOMAS, J., concurring dent. See Franchise Tax Bd. of Cal. v. Hyatt, ante, at – (BREYER, J., dissenting) (slip op., at 12–13). But see (asserting that not overruling precedent would “caus[e] uncertainty”). As I see it, we would eliminate a significant amount of uncertainty and provide the very stability sought if we replaced our malle- able balancing test with a clear, principled rule grounded in the meaning of the text. The true irony of our modern stare decisis doctrine lies in the fact that proponents of stare decisis tend to invoke it most fervently when the precedent at issue is least defen- sible. See, e.g., at –945 (opinion of THOMAS, J.) (“Stare decisis should not bind the Court to an interpretation of the Voting Rights Act that was based on a flawed method of statutory construction from its incep- tion” and that has created “an irreconcilable conflict” between the Act and the Equal Protection Clause and requires “methodically carving the country into racially designated electoral districts”). It is no secret that stare decisis has had a “ratchet-like effect,” cementing certain grievous departures from the law into the Court’s juris- prudence. Perhaps the most egregious example of this illegitimate use of stare decisis can be found in our “substantive due process” jurispru- dence. (THOMAS, J., concurring in part and concurring in judg- ment). The Court does not seriously defend the “legal fiction” of substantive due process as consistent with the original understanding of the Due Process Clause. And as I have explained before, “this fiction is a particu- larly dangerous one” because it “lack[s] a guiding principle to distinguish ‘fundamental’ rights that warrant protec- tion from nonfundamental rights that do not.” Unfortunately, the Court has doggedly adhered to these erroneous substantive-due-process precedents again and again, often to disastrous ends. See, e.g., Stenberg v. Cite as: 587 U. S. (2019) 17 THOMAS, J., concurring Carhart, (THOMAS, J., dissent- ing) (“The standard set forth in the plurality has no historical or doctrinal pedigree” and “is the product of its authors’ own philosophical views about abortion” with “no origins in or relationship to the Constitution”). Likewise, the Court refuses to reexamine its jurisprudence about the Privileges or Immunities Clause, thereby relegating a “ ‘clause in the constitution’ ” “ ‘to be without effect.’ ” (quoting Marbury, 1 Cranch, at 174); see Timbs v. Indiana, 586 U. S. (2019) (THOMAS, J., concurring in judgment) (criticizing the Court’s incorporation doctrine through a clause that ad- dresses procedures). No subjective balancing test can justify such a wholesale disregard of the People’s individ- ual rights protected by the Fourteenth Amendment. * * * Our judicial duty to interpret the law requires adher- ence to the original meaning of the text. For that reason, we should not invoke stare decisis to uphold precedents that are demonstrably erroneous. Because petitioner and the dissenting opinions have not shown that the Court’s dual-sovereignty doctrine is incorrect, much less demon- strably erroneous, I concur in the majority’s opinion. Cite as: 587 U. S. (2019) 1 GINSBURG, J., dissenting SUPREME COURT OF THE UNITED STATES No. 17–646 TERANCE MARTEZ GAMBLE, PETITIONER v. UNITED STATES ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT [June, 17, 2019] JUSTICE GINSBURG, dissenting Terance Martez Gamble pleaded guilty in Alabama state court to both possession of a firearm by a person convicted of “a crime of violence” and drug possession, and was sentenced to ten years’ imprisonment, all but one year suspended. Apparently regarding Alabama’s sentence as too lenient, federal prosecutors pursued a parallel charge, possession of a firearm by a convicted felon, in violation of federal law. Gamble again pleaded guilty and received nearly three more years in prison. Had either the Federal Government or Alabama brought the successive prosecutions, the second would have violated Gamble’s right not to be “twice put in jeopardy for the same offence.” U. S. Const., Amdt. 5, cl. 2. Yet the Federal Government was able to multiply Gamble’s time in prison because of the doctrine that, for double jeopardy purposes, identical criminal laws enacted by “separate sovereigns” are different “offence[s].” I dissent from the Court’s adherence to that misguided doctrine. Instead of “fritter[ing] away [Gamble’s] libert[y] upon a metaphysical subtlety, two sovereignties,” Grant, The Rule of Successive Prosecutions, 32 Colum. L. Rev. 1309, 1331 I would hold that the Double Jeopardy Clause bars “successive prosecutions [for the same offense] by parts of the whole USA.” Puerto Rico v. 2 GAMBLE v. UNITED STATES GINSBURG, J., dissenting Sánchez Valle, 579 U. S. (2016) (GINSBURG, J., concurring) (slip op., at 2). I A Gamble urges that the Double Jeopardy Clause incorpo- rates English common law. That law, he maintains, rec- ognized a foreign acquittal or conviction as a bar to retrial in England for the same offense. See Brief for Petitioner 11–15. The Court, in turn, strives mightily to refute Gamble’s account of the common law. See ante, at 8–21. This case, however, does not call for an inquiry into whether and when an 18th-century English court would have credited a foreign court’s judgment in a criminal case. Gamble was convicted in both Alabama and the United States, jurisdictions that are not foreign to each other. English court decisions regarding the respect due to a foreign nation’s judgment are therefore inapposite. B In United this Court held that “an act denounced as a crime by both national and state sovereignties is an offense against the peace and dignity of both and may be punished by each.” Decades later, a sharply divided Court reaf- firmed this separate-sovereigns doctrine. ; v. Illinois, 359 U.S. 121 I would not cling to those ill-advised decisions. 1 Justification for the separate-sovereigns doctrine cen- ters on the word “offence”: An “offence,” the argument runs, is the violation of a sovereign’s law, the United States and each State are separate sovereigns, ergo suc- cessive state and federal prosecutions do not place a de- fendant in “jeopardy for the same offence.” Ante, at 1, 3–4 (internal quotation marks omitted). Cite as: 587 U. S. (2019) 3 GINSBURG, J., dissenting This “compact syllogism” is fatally flawed. See Praying to False Sovereigns: The Rule Permitting Succes- sive Prosecutions in the Age of Cooperative Federalism, 20 Am. J. Crim. L. 1, 25 The United States and its constituent States, unlike foreign nations, are “kindred systems,” “parts of ONE WHOLE.” The Federalist No. 82, p. 493 (C. Rossiter ed. 1961) (A. Hamilton). They compose one people, bound by an overriding Federal Constitution. Within that “WHOLE,” the Federal and State Govern- ments should be disabled from accomplishing together “what neither government [could] do alone—prosecute an ordinary citizen twice for the same offence.” Amar & Marcus, Double Jeopardy Law After Rodney King, 95 Colum. L. Rev. 1, 2 The notion that the Federal Government and the States are separate sovereigns overlooks a basic tenet of our federal system. The doctrine treats governments as sover- eign, with state power to prosecute carried over from years predating the Constitution. See Heath v. Alabama, 474 U.S. 82, 89 (1985) (citing 260 U.S., ). In the system established by the Federal Constitution, however, “ultimate sovereignty” resides in the governed. Arizona State Legislature v. Arizona Independent Redistricting Comm’n, 576 U. S. (2015) (slip op., at 31); Martin v. Hunter’s Lessee, ; at 26–30. Insofar as a crime offends the “peace and dignity” of a sovereign, 260 U.S., that “sovereign” is the people, the “original fountain of all legitimate authority,” The Federalist No. 22, at 152 (A. Hamilton); see Note, Double Prosecution by State and Federal Governments: Another Exercise in Federalism, 80 Harv. L. Rev. 1538, 1542 (1967). States may be separate, but their populations are part of the people composing the United States. In our “compound republic,” the division of authority between the United States and the States was meant to 4 GAMBLE v. UNITED STATES GINSBURG, J., dissenting operate as “a double security [for] the rights of the people.” The Federalist No. 51, at 323 (J. Madison); see Bond v. United States, The separate- sovereigns doctrine, however, scarcely shores up people’s rights. Instead, it invokes federalism to withhold liberty. See –156 (Black, J., dissenting).1 It is the doctrine’s premise that each government has— and must be allowed to vindicate—a distinct interest in enforcing its own criminal laws. That is a peculiar way to look at the Double Jeopardy Clause, which by its terms safeguards the “person” and restrains the government. See, e.g., ; United (Calabresi, J., concurring). The Double Jeopardy Clause embodies a principle, “deeply ingrained” in our system of justice, “that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subject- ing him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.” “Looked at from the standpoint of the individual who is being prosecuted,” the liberty-denying potential of succes- sive prosecutions, when Federal and State Governments prosecute in tandem, is the same as it is when either prosecutes twice. (Black, J., —————— 1 The Court writes that federalism “advances individual liberty in many ways,” but does not always do so. Ante, at 10 (citing, for example, state prohibition of activities authorized by federal law). The analogy of the separate-sovereigns doctrine to dual regulation is inapt. The former erodes a constitutional safeguard against successive prosecu- tions, while the Constitution contains no guarantee against dual regulation. Cite as: 587 U. S. (2019) 5 GINSBURG, J., dissenting dissenting). 2 I turn, next, to further justifications the Court has supplied for the separate-sovereigns doctrine. None should survive close inspection. a One rationale emphasizes that the Double Jeopardy Clause originally restrained only the Federal Government and did not bar successive state prosecutions. ; 260 U.S., ; 434–435 (1847). Incorporation of the Clause as a restraint on action by the States, effected in 395 U.S. 4 (1969), has rendered this rationale obsolete. b Another justification is precedent. In adopting and reaffirming the separate-sovereigns doctrine, the Court relied on dicta from 19th-century opinions. See –193; –132; 260 U.S., –384. The persuasive force of those opinions is diminished by their dubious reasoning. See at 2–4. While drawing upon dicta from prior opinions, the Court gave short shrift to contrary authority. See at 20–23. First, the Framers of the Bill of Rights voted down an amendment that would have permitted the Federal Gov- ernment to reprosecute a defendant initially tried by a State. 1 Annals of Cong. 753 (19); J. Sigler, Double Jeopardy: The Development of a Legal and Social Policy 30–31 (1969). But cf. ante, at 4–5. Nevermind that this amendment failed; the Court has attributed to the Clause the very meaning the First Congress refrained from adopting.2 —————— 2 The Court sees this history as poor evidence of congressional intent. 6 GAMBLE v. UNITED STATES GINSBURG, J., dissenting Second, early American courts regarded with disfavor the prospect of successive prosecutions by the Federal and State Governments. In (1820), Justice Washington expressed concern that such prosecutions would be “very much like oppression, if not worse”; he noted that an acquittal or conviction by one sovereign “might be pleaded in bar of the prosecution before the other.” The Court today follows in distinguishing Justice Washington’s opinion as addressing only the “strange” situation in which a State has prosecuted an offense “against the United States.” Ante, at 24; see The distinction is thin, given the encompassing language in Justice Wash- ington’s opinion. Justice Story’s dissent, moreover, de- clared successive prosecutions for the same offense contrary to “the principles of the common law, and the genius of our free government.” Most of the early state decisions cited by the parties regarded successive federal-state prosecutions as unac- ceptable. See –159 (Black, J., dissenting). Only one court roundly endorsed a separate- sovereigns theory. Hendrick v. Commonwealth, 32 Va. 713 (1834). The Court reads the state-court opinions as “distin[guishing] between believing successive prosecu- tions by separate sovereigns unjust and holding them unlawful.” Ante, at 21. I would not read the Double Jeop- ardy Clause to tolerate “unjust” prosecutions and believe early American courts would have questioned the Court’s distinction. See —————— See ante, at 4. On another day, the Court looked to the First Congress’ rejection of proposed amendments as instructive. See Moreover, a “compelling” principle of statu- tory interpretation is “the proposition that Congress does not intend sub silentio to enact statutory language that it has earlier discarded in favor of other language.” 442– 443 (1987) (internal quotation marks omitted). Cite as: 587 U. S. (2019) 7 GINSBURG, J., dissenting (allowing successive prosecutions would be “against natu- ral justice, and therefore I cannot believe it to be law”). c Finally, the Court has reasoned that the separate- sovereigns doctrine is necessary to prevent either the Federal Government or a State from encroaching on the other’s law enforcement prerogatives. Without this doc- trine, the Court has observed, the Federal Government, by prosecuting first, could bar a State from pursuing more serious charges for the same offense, 359 U.S., at 137; and conversely, a State, by prosecuting first, could effectively nullify federal law, This concern envisions federal and state prosecutors work- ing at cross purposes, but cooperation between authorities is the norm. See And when federal-state tension exists, successive prosecutions for the federal and state offenses may escape double-jeopardy blockage under the test prescribed in Offenses are distinct, Block- burger held, if “each requires proof of a fact which the other does not.” ; see Amar, 95 Colum. L. Rev., at 45–46 (violation of federal civil rights law and state assault law are different offenses). II The separate-sovereigns doctrine, I acknowledge, has been embraced repeatedly by the Court. But “[s]tare decisis is not an inexorable command.” Payne v. Tennes- see, Our adherence to precedent is weakest in cases “concerning procedural rules that implicate fundamental constitutional protections.” Al v. United States, n. 5 Gamble’s case fits that bill. I would lay the “separate-sovereigns” rationale to rest for the aforesaid reasons and those stated below. 8 GAMBLE v. UNITED STATES GINSBURG, J., dissenting A First, 395 U.S. 4, which ren- dered the double jeopardy safeguard applicable to the States, left the separate-sovereigns doctrine the sort of “legal last-man-standing for which we sometimes depart from stare decisis.” Kimble v. Marvel Entertainment, LLC, 576 U. S. (2015) (slip op., at 11). In adopting and cleaving to the doctrine, the Court stressed that originally, the Clause restrained only federal, not state, action. E.g., ; 260 U.S., ; cf. Before incorporation, the separate-sovereigns doctrine had a certain logic: Without a carve-out for successive prosecutions by separate sovereigns, the Double Jeopardy Clause would have barred the Federal Government from prosecuting a defendant previously tried by a State, but would not have prevented a State from prosecuting a defendant previously tried by the Federal Government. Incorporation changed this. Operative against the States since 1969, when the Court decided 395 U.S. 4, the double jeopardy proscription now ap- plies to the Federal Government and the States alike. The remaining office of the separate-sovereigns doctrine, then, is to enable federal and state prosecutors, proceeding one after the other, to expose defendants to double jeopardy. The separate-sovereigns doctrine’s persistence contrasts with the fate of analogous dual-sovereignty doctrines following application of the rights at issue to the States. Prior to incorporation of the Fourth Amendment as a restraint on state action, federal prosecutors were free to use evidence obtained illegally by state or local officers, then served up to federal officers on a “silver platter.” See ; Once the Fourth Amendment applied to the States, abandon- ment of this “silver platter doctrine” was impelled by Cite as: 587 U. S. (2019) 9 GINSBURG, J., dissenting “principles of logic” and the reality that, from the perspec- tive of the victim of an unreasonable search and seizure, it mattered not at all “whether his constitutional right ha[d] been invaded by a federal agent or by a state officer.” 215. As observed by Justice Harlan, ’ abandonment of a separate-sovereigns exception to the exclusionary rule was at odds with reten- tion of the separate-sovereigns doctrine for double jeop- ardy purposes in and See 364 U.S., at 252. Similarly, before incorporation of the Fifth Amendment privilege against self-incrimination, the Court held that the privilege did not prevent state authorities from com- pelling a defendant to provide testimony that could in- criminate him or her in another jurisdiction. Knapp v. Schweitzer, After applica- tion of the self-incrimination privilege to the States, the Court concluded that its prior position was incompatible with the “policies and purposes” of the privilege. Murphy v. Waterfront Comm’n of N. Y. Harbor, 3 U.S. 52, (1964). No longer, the Court held, could a witness “ be whipsawed into incriminating himself under both state and federal law even though the constitutional privilege against self-incrimination is applicable to each.” (internal quotation marks omitted; emphasis added). The Court regards incorporation as immaterial because application of the Double Jeopardy Clause to the States did not affect comprehension of the word “offence” to mean the violation of one sovereign’s law. Ante, at 28. But the Court attributed a separate-sovereigns meaning to “of- fence” at least in part because the Double Jeopardy Clause did not apply to the States. See Incorporation of the Clause should prompt the Court to consider the protection against double jeopardy from the defendant’s perspective and to ask why each of two governments within the United States should be permitted to try a 10 GAMBLE v. UNITED STATES GINSBURG, J., dissenting defendant once for the same offense when neither could try him or her twice. B The expansion of federal criminal law has exacerbated the problems created by the separate-sovereigns doctrine. Ill effects of the doctrine might once have been tempered by the limited overlap between federal and state criminal law. All Assets of G.P.S. 66 F.3d, at (Calabresi, J., concurring). In the last half century, how- ever, federal criminal law has been extended pervasively into areas once left to the States. Guerra, The Myth of Dual Sovereignty: Multijurisdictional Drug Law Enforce- ment and Double Jeopardy, 73 N. C. L. Rev. 1159, 5– 2 ; Brief for Sen. Orrin Hatch as Amicus Curiae 8–14. This new “age of ‘cooperative federalism,’ [in which] the Federal and State Governments are waging a united front against many types of criminal activity,” Murphy, 3 U.S., –56, provides new opportunities for federal and state prosecutors to “join together to take a second bite at the apple,” All Assets of G.P.S. 66 F.3d, at (Calabresi, J., concurring).3 This situation might be less troublesome if successive prosecutions oc- curred only in “instances of peculiar enormity, or where the public safety demanded extraordinary rigor.” Fox, 5 How., at 435. The run-of-the-mill felon-in-possession charges Gamble encountered indicate that, in practice, successive prosecutions are not limited to exceptional circumstances. —————— 3 v. Illinois, left open the prospect that the double jeopardy ban might block a successive state prosecution that was merely “a sham and a cover for a federal prosecution.” at 123– 124. The Courts of Appeals have read this potential exception narrowly. See, e.g., United 938 F.2d 5, 9 Cite as: 587 U. S. (2019) 11 GINSBURG, J., dissenting C Against all this, there is little to be said for keeping the separate-sovereigns doctrine. Gamble’s case “do[es] not implicate the reliance interests of private parties.” Al- 570 U.S., at The closest thing to a reliance interest would be the interest Federal and State Governments have in avoiding avulsive changes that could complicate ongoing prosecutions. As the Court correctly explains, however, overruling the separate-sovereigns doctrine would not affect large num- bers of cases. See ante, at 28–29. In prosecutions based on the same conduct, federal and state prosecutors will often charge offenses having different elements, charges that, under Blockburger, will not trigger double jeopardy protection. See Poulin, Double Jeopardy Protection From Successive Prosecution: A Proposed Approach, 92 Geo. L. J. 1183, 1244–1245 (2004); Brief for Criminal Defense Experts as Amici Curiae 5–11.4 Notably, the Federal Government has endeavored to reduce the incidence of “same offense” prosecutions. Un- der the Petite policy adopted by the Department of Jus- tice,5 the Department will pursue a federal prosecution —————— 4 The Government implies there is tension between Gamble’s position and Brief for United States 18–20. But if courts can ascertain how laws enacted by different Congresses fare under Blockburger, they can do the same for laws enacted by Congress and a State, or by two States. But cf. Amar & Marcus, Double Jeopardy Law After Rodney King, 95 Colum. L. Rev. 1, 39 (“Because different legislatures often do not work from the same linguistic building blocks, they will not use uniform language to describe an offence, even when each is indeed outlawing the same crime with the same elements.”). 5 Formally the “Dual and Successive Prosecution Policy,” the policy is popularly known by the name of the case in which this Court first took note of it, The policy was adopted “in direct response to” and v. United States, Rinaldi v. United States, 434 U.S. 12 GAMBLE v. UNITED STATES GINSBURG, J., dissenting “based on substantially the same act(s) or transaction(s)” previously prosecuted in state court only if the first prose- cution left a “substantial federal interest demonstrably unvindicated” and a Department senior official authorizes the prosecution. Dept. of Justice, Justice Manual 2.031(A) (rev. July 2009). At oral argument, the Government estimated that it authorizes only “about a hundred” Petite prosecutions per year. Tr. of Oral Arg. 54. But see at 65–66 (referring to the “few hundred successive prosecutions that [the Government] bring[s] each year”). Some of these prosecu- tions will not implicate double jeopardy, as the Petite policy uses a same-conduct test that is broader than the Blockburger same-elements test. And more than half the States forbid successive prosecutions for all or some of- fenses previously resolved on the merits by a federal or state court. Brief for Criminal Defense Experts as Amici Curiae 4–5, and n. 2 (collecting statutes); Brief for State of Texas et al. as Amici Curiae 28–30, and nn. 6–15 (same). In short, it is safe to predict that eliminating the separate- sovereigns doctrine would spark no large disruption in practice. * * * The separate-sovereigns doctrine, especially since and has been subject to relentless criti- cism by members of the bench, bar, and academy. Never- theless, the Court reaffirms the doctrine, thereby dimin- ishing the individual rights shielded by the Double Jeopardy Clause. Different parts of the “WHOLE” United States should not be positioned to prosecute a defendant a second time for the same offense. I would reverse Gam- ble’s federal conviction. —————— 22, 28 (7) Cite as: 587 U. S. (2019) 1 GORSUCH, J., dissenting SUPREME COURT OF THE UNITED STATES No. 17–646 TERANCE MARTEZ GAMBLE, PETITIONER v.	2,075
Justice Kennedy	majority	false	Glover v. United States	2001-01-09	null	https://www.courtlistener.com/opinion/118397/glover-v-united-states/	https://www.courtlistener.com/api/rest/v3/clusters/118397/	2,001	2000-011	2	9	0	The issue presented rests upon the initial assumption, which we accept for analytic purposes, that the trial court 200 erred in a Sentencing Guidelines determination after petitioner's conviction of a federal offense. The legal error, petitioner alleges, increased his prison sentence by at least 6 months and perhaps by 21 months. We must decide whether this would be "prejudice" under Strickland v. Washington, 466 U.S. 668 (1984). The Government is not ready to concede error in the sentencing determination but now acknowledges that if an increased prison term did flow from an error the petitioner has established Strickland prejudice. In agreement with the Government and petitioner on this point, we reverse and remand for further proceedings. I In the 1980's and early 1990's, petitioner Paul Glover was the Vice President and General Counsel of the Chicago Truck Drivers, Helpers, and Warehouse Workers Union (Independent). The evidence showed Glover used his control over the union's investments to enrich himself and his co-conspirators through kickbacks. When the malfeasance was discovered, he was tried in the United States District Court for the Northern District of Illinois. His first trial ended when the jury could not agree, but a second jury convicted him. The presentence investigation report prepared by the probation office recommended that the convictions for labor racketeering, money laundering, and tax evasion be grouped together under United States Sentencing Commission, Guidelines Manual § 3D1.2 (Nov. 1994), which allows the grouping of "counts involving substantially the same harm." The Government, insisting that the money laundering counts could not be grouped with the other counts, objected to that recommendation, and the District Court held a hearing on the matter. The money laundering counts, it ruled, should not be grouped with Glover's other offenses. The ruling, as the trial court viewed it, was in conformance with decisions in those Courts of Appeals which had refused to group money laundering counts with other counts for various reasons. 201 See, e. g., United States v. Lombardi, 5 F.3d 568 (CA1 1993); United States v. Porter, 909 F.2d 789 (CA4 1990); United States v. Taylor, 984 F.2d 298 (CA9 1993); United States v. Johnson, 971 F.2d 562 (CA10 1992); United States v. Harper, 972 F.2d 321 (CA11 1992). In the trial court, Glover's attorneys did not submit papers or offer extensive oral arguments contesting the no-grouping argument advanced by the Government. When the District Court decided not to group the money laundering counts with the other counts, Glover's offense level was increased by two levels, yielding a concomitant increase in the sentencing range. Glover was sentenced to 84 months in prison, which was in the middle of the Guidelines range of 78 to 97 months. On appeal to the Seventh Circuit, Glover's counsel (the same attorneys who represented him in District Court) did not raise the grouping issue; instead, they concentrated on claims that certain testimony from his first trial should not have been admitted at his second trial and that he should not have been assessed a two-level increase for perjury at his first trial. A short time after argument on Glover's appeal, a different panel of the Seventh Circuit held that, under some circumstances, grouping of money laundering offenses with other counts was proper under § 3D1.2. United States v. Wilson, 98 F.3d 281 (1996). A month and a half later, the Seventh Circuit rejected both of Glover's arguments and affirmed his conviction and sentence. 101 F.3d 1183 (1996). Glover filed a pro se motion to correct his sentence under 28 U.S. C. § 2255 (1994 ed., Supp. III). The failure of his counsel to press the grouping issue, he argued, was ineffective assistance, a position confirmed, in his view, by the Court of Appeals' decision in Wilson. The performance of counsel, he contended, fell below a reasonable standard both at sentencing, when his attorneys did not with any clarity or force contest the Government's argument, and on appeal, when they did not present the issue in their briefs or call the Wilson decision to the panel's attention following the oral 202 argument. He further argued that absent the ineffective assistance, his offense level would have been two levels lower, yielding a Guidelines sentencing range of 63 to 78 months. Under this theory, the 84-month sentence he received was an unlawful increase of anywhere between 6 and 21 months. The District Court denied Glover's motion, determining that under Seventh Circuit precedent an increase of 6 to 21 months in a defendant's sentence was not significant enough to amount to prejudice for purposes of Strickland v. Washington, supra. As a result, the District Court did not decide the issue whether the performance of Glover's counsel fell below a reasonable standard of competence. On appeal to the Seventh Circuit, the Government argued only that Glover had not suffered prejudice within the meaning of Strickland. See App. to Reply Brief for Petitioner 1a22a. Citing Durrive v. United States, 4 F.3d 548 (CA7 1993), the Government contended that even were the performance of Glover's counsel ineffective, the resulting additional 6 to 21 months, under the law as established in the Seventh Circuit, would not constitute prejudice. App. to Reply Brief for Petitioner 21a. The Court of Appeals affirmed, relying on that theory. 182 F.3d 921 (1999) (table). We granted Glover's petition for certiorari. 530 U.S. 1261 (2000). II The Government no longer puts forth the proposition that a 6- to 21-month prison term increase is not prejudice under Strickland. It now acknowledges that such a rule, without more, would be "inconsistent with this Court's cases and unworkable." Brief for United States 18. It appears the Seventh Circuit drew the substance of its no-prejudice rule from our opinion in Lockhart v. Fretwell, 506 U.S. 364 (1993). Lockhart holds that in some circumstances a mere difference in outcome will not suffice to establish prejudice. Id., at 369. The Seventh Circuit extracted from this holding the rule at issue here, which denies relief 203 when the increase in sentence is said to be not so significant as to render the outcome of sentencing unreliable or fundamentally unfair. See Durrive, supra, at 550-551. The Court explained last Term that our holding in Lockhart does not supplant the Strickland analysis. See Williams v. Taylor, 529 U.S. 362, 393 (2000) ("Cases such as Nix v. Whiteside, 475 U.S. 157 (1986), and Lockhart v. Fretwell, 506 U.S. 364 (1993), do not justify a departure from a straightforward application of Strickland when the ineffectiveness of counsel does deprive the defendant of a substantive or procedural right to which the law entitles him"); id., at 414 (opinion of O'Connor, J.) ("As I explained in my concurring opinion in [Lockhart], `in the vast majority of cases . . . [t]he determinative questionwhether there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different"remains unchanged' "). The Seventh Circuit was incorrect to rely on Lockhart to deny relief to persons attacking their sentence who might show deficient performance in counsel's failure to object to an error of law affecting the calculation of a sentence because the sentence increase does not meet some baseline standard of prejudice. Authority does not suggest that a minimal amount of additional time in prison cannot constitute prejudice. Quite to the contrary, our jurisprudence suggests that any amount of actual jail time has Sixth Amendment significance. Compare Argersinger v. Hamlin, 407 U.S. 25 (1972) (holding that the assistance of counsel must be provided when a defendant is tried for a crime that results in a sentence of imprisonment), with Scott v. Illinois, 440 U.S. 367 (1979) (holding that a criminal defendant has no Sixth Amendment right to counsel when his trial does not result in a sentence of imprisonment). Our decisions on the right to jury trial in a criminal case do not suggest that there is no prejudice in the circumstances here. Those cases have limited the right to jury trial to offenses where the potential punishment was imprisonment for six months or more. See 204 Argersinger, supra, at 29 (citing Duncan v. Louisiana, 391 U.S. 145 (1968)). But they do not control the question whether a showing of prejudice, in the context of a claim for ineffective assistance of counsel, requires a significant increase in a term of imprisonment. The Seventh Circuit's rule is not well considered in any event, because there is no obvious dividing line by which to measure how much longer a sentence must be for the increase to constitute substantial prejudice. Indeed, it is not even clear if the relevant increase is to be measured in absolute terms or by some fraction of the total authorized sentence. See Martin v. United States, 109 F.3d 1177, 1183 (CA7 1996) (Rovner, J., dissenting from denial of rehearing en banc). Although the amount by which a defendant's sentence is increased by a particular decision may be a factor to consider in determining whether counsel's performance in failing to argue the point constitutes ineffective assistance, under a determinate system of constrained discretion such as the Sentencing Guidelines it cannot serve as a bar to a showing of prejudice. Compare Spriggs v. Collins, 993 F.2d 85, 88 (CA5 1993) (requiring a showing that a sentence would have been "significantly less harsh" under the Texas discretionary sentencing scheme), with United States v. Phillips, 210 F.3d 345 (CA5 2000) (finding prejudice under the Sentencing Guidelines when an error by counsel led to an increased sentence). We hold that the Seventh Circuit erred in engrafting this additional requirement onto the prejudice branch of the Strickland test. This is not a case where trial strategies, in retrospect, might be criticized for leading to a harsher sentence. Here we consider the sentencing calculation itself, a calculation resulting from a ruling which, if it had been error, would have been correctable on appeal. We express no opinion on the ultimate merits of Glover's claim because the question of deficient performance is not before us, but it is clear that prejudice flowed from the asserted error in sentencing. 205 III The Government makes various arguments for alternative grounds to affirm the Court of Appeals. Among other contentions, the Government suggests that the failure of Glover's counsel to argue for grouping of the money laundering counts was not deficient; that Glover's grouping claim has no legal merit in any event; and that even if Glover had prevailed on his grouping claim, his sentence in fact would have increased as a result. Glover disputes these contentions. We need not describe the arguments in great detail, because despite the fact the parties have joined issue at least in part on these points, they were neither raised in nor passed upon by the Court of Appeals. In the ordinary course we do not decide questions neither raised nor resolved below. See Taylor v. Freeland & Kronz, 503 U.S. 638, 646 (1992). As a general rule, furthermore, we do not decide issues outside the questions presented by the petition for certiorari. This Court's Rule 14.1(a). Whether these issues remain open, and if so whether they have merit, are questions for the Court of Appeals or the District Court to consider and determine in the first instance. The judgment of the Seventh Circuit is reversed. The case is remanded for further proceedings consistent with this opinion. It is so ordered.	The issue presented rests upon the initial assumption, which we accept for analytic purposes, that the trial court 200 erred in a Sentencing Guidelines determination after petitioner's conviction of a federal offense. The legal error, petitioner alleges, increased his prison sentence by at least 6 months and perhaps by 21 months. We must decide whether this would be "prejudice" under The Government is not ready to concede error in the sentencing determination but now acknowledges that if an increased prison term did flow from an error the petitioner has established Strickland prejudice. In agreement with the Government and petitioner on this point, we reverse and remand for further proceedings. I In the 1980's and early 's, petitioner Paul Glover was the Vice President and General Counsel of the Chicago Truck Drivers, Helpers, and Warehouse Workers Union (Independent). The evidence showed Glover used his control over the union's investments to enrich himself and his co-conspirators through kickbacks. When the malfeasance was discovered, he was tried in the United States District Court for the Northern District of Illinois. His first trial ended when the jury could not agree, but a second jury convicted him. The presentence investigation report prepared by the probation office recommended that the convictions for labor racketeering, money laundering, and tax evasion be grouped together under United States Sentencing Commission, Guidelines Manual 3D1.2 (Nov. 1994), which allows the grouping of "counts involving substantially the same harm." The Government, insisting that the money laundering counts could not be grouped with the other counts, objected to that recommendation, and the District Court held a hearing on the matter. The money laundering counts, it ruled, should not be grouped with Glover's other offenses. The ruling, as the trial court viewed it, was in conformance with decisions in those Courts of Appeals which had refused to group money laundering counts with other counts for various reasons. 201 See, e. g., United ; United ; United ; United ; United In the trial court, Glover's attorneys did not submit papers or offer extensive oral arguments contesting the no-grouping argument advanced by the Government. When the District Court decided not to group the money laundering counts with the other counts, Glover's offense level was increased by two levels, yielding a concomitant increase in the sentencing range. Glover was sentenced to 84 months in prison, which was in the middle of the Guidelines range of 78 to 97 months. On appeal to the Seventh Circuit, Glover's counsel (the same attorneys who represented him in District Court) did not raise the grouping issue; instead, they concentrated on claims that certain testimony from his first trial should not have been admitted at his second trial and that he should not have been assessed a two-level increase for perjury at his first trial. A short time after argument on Glover's appeal, a different panel of the Seventh Circuit held that, under some circumstances, grouping of money laundering offenses with other counts was proper under 3D1.2. United A month and a half later, the Seventh Circuit rejected both of Glover's arguments and affirmed his conviction and sentence. Glover filed a pro se motion to correct his sentence under 28 U.S. C. 2255 (1994 ed., Supp. III). The failure of his counsel to press the grouping issue, he argued, was ineffective assistance, a position confirmed, in his view, by the Court of Appeals' decision in Wilson. The performance of counsel, he contended, fell below a reasonable standard both at sentencing, when his attorneys did not with any clarity or force contest the Government's argument, and on appeal, when they did not present the issue in their briefs or call the Wilson decision to the panel's attention following the oral 202 argument. He further argued that absent the ineffective assistance, his offense level would have been two levels lower, yielding a Guidelines sentencing range of 63 to 78 months. Under this theory, the 84-month sentence he received was an unlawful increase of anywhere between 6 and 21 months. The District Court denied Glover's motion, determining that under Seventh Circuit precedent an increase of 6 to 21 months in a defendant's sentence was not significant enough to amount to prejudice for purposes of As a result, the District Court did not decide the issue whether the performance of Glover's counsel fell below a reasonable standard of competence. On appeal to the Seventh Circuit, the Government argued only that Glover had not suffered prejudice within the meaning of Strickland. See App. to Reply Brief for Petitioner 1a22a. Citing the Government contended that even were the performance of Glover's counsel ineffective, the resulting additional 6 to 21 months, under the law as established in the Seventh Circuit, would not constitute prejudice. App. to Reply Brief for Petitioner 21a. The Court of Appeals affirmed, relying on that theory. We granted Glover's petition for certiorari. II The Government no longer puts forth the proposition that a 6- to 21-month prison term increase is not prejudice under Strickland. It now acknowledges that such a rule, without more, would be "inconsistent with this Court's cases and unworkable." Brief for United States 18. It appears the Seventh Circuit drew the substance of its no-prejudice rule from our opinion in Lockhart holds that in some circumstances a mere difference in outcome will not suffice to establish prejudice. The Seventh Circuit extracted from this holding the rule at issue here, which denies relief 203 when the increase in sentence is said to be not so significant as to render the outcome of sentencing unreliable or fundamentally unfair. See The Court explained last Term that our holding in Lockhart does not supplant the Strickland analysis. See and do not justify a departure from a straightforward application of Strickland when the ineffectiveness of counsel does deprive the defendant of a substantive or procedural right to which the law entitles him"); ("As I explained in my concurring opinion in [Lockhart], `in the vast majority of cases [t]he determinative questionwhether there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different"remains unchanged' "). The Seventh Circuit was incorrect to rely on Lockhart to deny relief to persons attacking their sentence who might show deficient performance in counsel's failure to object to an error of law affecting the calculation of a sentence because the sentence increase does not meet some baseline standard of prejudice. Authority does not suggest that a minimal amount of additional time in prison cannot constitute prejudice. Quite to the contrary, our jurisprudence suggests that any amount of actual jail time has Sixth Amendment significance. Compare with Our decisions on the right to jury trial in a criminal case do not suggest that there is no prejudice in the circumstances here. Those cases have limited the right to jury trial to offenses where the potential punishment was imprisonment for six months or more. See 204 at 29 ). But they do not control the question whether a showing of prejudice, in the context of a claim for ineffective assistance of counsel, requires a significant increase in a term of imprisonment. The Seventh Circuit's rule is not well considered in any event, because there is no obvious dividing line by which to measure how much longer a sentence must be for the increase to constitute substantial prejudice. Indeed, it is not even clear if the relevant increase is to be measured in absolute terms or by some fraction of the total authorized sentence. See Although the amount by which a defendant's sentence is increased by a particular decision may be a factor to consider in determining whether counsel's performance in failing to argue the point constitutes ineffective assistance, under a determinate system of constrained discretion such as the Sentencing Guidelines it cannot serve as a bar to a showing of prejudice. Compare with United We hold that the Seventh Circuit erred in engrafting this additional requirement onto the prejudice branch of the Strickland test. This is not a case where trial strategies, in retrospect, might be criticized for leading to a harsher sentence. Here we consider the sentencing calculation itself, a calculation resulting from a ruling which, if it had been error, would have been correctable on appeal. We express no opinion on the ultimate merits of Glover's claim because the question of deficient performance is not before us, but it is clear that prejudice flowed from the asserted error in sentencing. 205 III The Government makes various arguments for alternative grounds to affirm the Court of Appeals. Among other contentions, the Government suggests that the failure of Glover's counsel to argue for grouping of the money laundering counts was not deficient; that Glover's grouping claim has no legal merit in any event; and that even if Glover had prevailed on his grouping claim, his sentence in fact would have increased as a result. Glover disputes these contentions. We need not describe the arguments in great detail, because despite the fact the parties have joined issue at least in part on these points, they were neither raised in nor passed upon by the Court of Appeals. In the ordinary course we do not decide questions neither raised nor resolved below. See As a general rule, furthermore, we do not decide issues outside the questions presented by the petition for certiorari. This Court's Rule 14.1(a). Whether these issues remain open, and if so whether they have merit, are questions for the Court of Appeals or the District Court to consider and determine in the first instance. The judgment of the Seventh Circuit is reversed. The case is remanded for further proceedings consistent with this opinion. It is so ordered.	2,081
Justice Thomas	majority	false	Rousey v. Jacoway	2005-04-04	null	https://www.courtlistener.com/opinion/142887/rousey-v-jacoway/	https://www.courtlistener.com/api/rest/v3/clusters/142887/	2,005	2004-039	2	9	0	The Bankruptcy Code permits debtors to exempt certain property from the bankruptcy estate, allowing them to retain those assets rather than divide them among their creditors. 11 U.S.C. § 522. The question in this case is whether debtors can exempt assets in their Individual Retirement Accounts (IRAs) from the bankruptcy estate pursuant to § 522(d)(10)(E). We hold that IRAs can be so exempted. I Petitioners Richard and Betty Jo Rousey were formerly employed at Northrup Grumman Corp. At the termination of their employment, Northrup Grumman required them to take lump-sum distributions from their employer-sponsored pension plans. In re Rousey, 283 B.R. 265, 268 (Bkrtcy. App. Panel CA8 2002); Brief for Petitioners 2. The Rouseys deposited the lump sums into two IRAs, one in each of their names. 283 B.R., at 268. The Rouseys' accounts qualify as IRAs under a number of requirements imposed by the Internal Revenue Code. Each account is "a trust created or organized in the United States for the exclusive benefit of an individual or his beneficiaries." 26 U.S. C. § 408(a) (2000 ed. and Supp. II). The Internal 323 Revenue Code limits the types of assets in which IRA-holders may invest their accounts, §§ 408(a)(3), (a)(5), and provides that the balance in IRAs is nonforfeitable, § 408(a)(4). It also caps yearly contributions to IRAs. § 408(o)(2). Withdrawals made before the accountholder turns 59½ are, with limited exceptions, subject to a 10-percent tax penalty. § 72(t). IRA contributions receive favorable tax treatment. In particular, the Internal Revenue Code generally defers taxation of the money placed in IRAs and the income earned from those sums until the assets are withdrawn. See § 219(a) (contributions to IRAs are tax deductible); § 408(e)(1) (IRA is tax exempt). Moreover, within a certain timeframe accountholders can, as the Rouseys did here, roll over distributions received from other retirement plans. § 408(a)(1). The Internal Revenue Code encourages such rollovers by making them nontaxable. §§ 408(d)(3), 402(c)(1), 403(b)(8), and 457(e)(16). The Rouseys' IRA agreements, as well as relevant regulations, provide that their "entire interest in the custodial account must be, or begin to be, distributed by" April 1 following the calendar yearend in which they reach age 70½. In re Rousey, 275 B.R. 307, 310 (Bkrtcy. Ct. WD Ark. 2002). The IRA agreements permit withdrawal prior to age 59½, but note the federal tax penalties applicable to such distributions. Id., at 311. Several years after establishing their IRAs, the Rouseys filed a joint Chapter 7 bankruptcy petition in the United States Bankruptcy Court for the Western District of Arkansas. In the schedules and statements accompanying their petition, the Rouseys sought to shield portions of their IRAs from their creditors by claiming them as exempt from the bankruptcy estate pursuant to 11 U.S. C. § 522(d)(10)(E). This exemption provides that a debtor may withdraw from the bankruptcy estate his "right to receive . . . . . 324 "(E) a payment under a stock bonus, pension, profitsharing, annuity, or similar plan or contract on account of illness, disability, death, age, or length of service, to the extent reasonably necessary for the support of the debtor and any dependent of the debtor. . . ." The Bankruptcy Court appointed respondent Jill R. Jacoway as the Chapter 7 Trustee. As Trustee, Jacoway is responsible for overseeing the liquidation of the bankruptcy estate and the distribution of the proceeds. She objected to the Rouseys' claim for the exemption of their IRAs and moved for turnover of those sums to her. The Bankruptcy Court sustained Jacoway's objection and granted her motion. 275 B.R., at 309. The Rouseys appealed. The Bankruptcy Appellate Panel (BAP) agreed with the Bankruptcy Court that the Rouseys could not exempt their IRAs under § 522(d)(10)(E). It concluded that the IRAs were not "`similar plan[s] or contract[s]'" to stock bonus, pension, profitsharing, or annuity plans, because, by contrast to the limited access permitted in such plans, the Rouseys had "unlimited access" to the funds held in their IRAs. 283 B.R., at 272. That access also meant, the BAP reasoned, that the Rouseys had complete control over the funds in their IRAs, "subject only to a ten percent tax penalty." Id., at 273. Because they had such control, the payments from the IRAs were not "on account of any factor listed in 11 U.S. C. § 522(d)(10)(E)." Ibid. The Rouseys again appealed, and the Court of Appeals for the Eighth Circuit affirmed. The Court of Appeals concluded that, even if the Rouseys' IRAs were "`similar plans or contracts'" to stock bonus, pension, profitsharing, or annuity plans, their IRAs gave them no right to receive payment "`on account of age.'" In re Rousey, 347 F.3d 689, 693 (2003). Like the BAP, the Court of Appeals reasoned that 325 the Rouseys' right to payment was conditioned neither on age nor on any of the other statutory factors. Their IRAs were instead "readily accessible savings accounts of which the debtors may easily avail themselves (albeit with some discouraging tax consequences) at any time for any purpose." Ibid. The Court of Appeals recognized that several of its sister Circuits had reached a contrary result. Ibid. See In re Brucher, 243 F.3d 242, 243-244 (CA6 2001); In re McKown, 203 F.3d 1188, 1190 (CA9 2000); In re Dubroff, 119 F.3d 75, 78 (CA2 1997); In re Carmichael, 100 F.3d 375, 378 (CA5 1996). We granted certiorari to resolve this division among the Courts of Appeals regarding whether debtors can exempt IRAs from the bankruptcy estate under 11 U.S. C. § 522(d)(10)(E). 541 U.S. 1085 (2004). II As a general matter, upon the filing of a petition for bankruptcy, "all legal or equitable interests of the debtor in property" become the property of the bankruptcy estate and will be distributed to the debtor's creditors. § 541(a)(1). To help the debtor obtain a fresh start, the Bankruptcy Code permits him to withdraw from the estate certain interests in property, such as his car or home, up to certain values. See, e. g., § 522(d); United States v. Security Industrial Bank, 459 U.S. 70, 72, n. 1 (1982). In this case, the Rouseys claimed their IRAs as exempt under § 522(d)(10)(E). Under the terms of the statute, see supra, at 323-324, the Rouseys' right to receive payment under their IRAs must meet three requirements to be exempted under this provision: (1) the right to receive payment must be from "a stock bonus, pension, profitsharing, annuity, or similar plan or contract"; (2) the right to receive payment must be "on account of illness, disability, death, age, or length of service"; and (3) even then, the right to receive payment may be exempted only 326 "to the extent" that it is "reasonably necessary [to] support" the accountholder or his dependents. § 522(d)(10)(E). The dispute in this case is whether the Rouseys' IRAs fulfill the first and second requirements. This Court implied that IRAs like the Rouseys' satisfy both elements in Patterson v. Shumate, 504 U.S. 753 (1992). There, in construing another section of the Bankruptcy Code, this Court stated that IRAs could be exempted pursuant to § 522(d)(10)(E). Id., at 762-763 ("Although a debtor's interest [in an IRA] could not be excluded under § 541(c)(2) ..., that interest nevertheless could be exempted under § 522(d)(10)(E)" (footnote omitted)). We now reaffirm that statement and conclude that IRAs can be exempted from the bankruptcy estate pursuant to § 522(d)(10)(E). A We turn first to the requirement that the payment be "on account of illness, disability, death, age, or length of service." Ibid. We have interpreted the phrase "on account of" elsewhere within the Bankruptcy Code to mean "because of," thereby requiring a causal connection between the term that the phrase "on account of" modifies and the factor specified in the statute at issue. Bank of America Nat. Trust and Sav. Assn. v. 203 North LaSalle Street Partnership, 526 U.S. 434, 450-451 (1999). In reaching that conclusion, we noted that "because of" was "certainly the usage meant for the phrase at other places in the [bankruptcy] statute," including the provision at issue here § 522(d)(10)(E). Ibid. This meaning comports with the common understanding of "on account of." See, e. g., Random House Dictionary of the English Language 13 (2d ed. 1987) (listing as definitions "by reason of," "because of"); Webster's Third New International Dictionary 13 (1981) (hereinafter Webster's 3d) (same). The context of this provision does not suggest that Congress deviated from the term's ordinary meaning. Thus, "on account of" in § 522(d)(10)(E) requires that the right to receive 327 payment be "because of" illness, disability, death, age, or length of service. Jacoway argues that the Rouseys' right to receive payment from their IRAs is not "because of" these listed factors. In particular, she asserts that the Rouseys can withdraw funds from their IRAs for any reason at all, so long as they are willing to pay a 10-percent penalty. Thus, Jacoway maintains that there is no causal connection between the Rouseys' right to payment and age (or any other factor), because their IRAs provide a right to payment on demand. We disagree. The statutes governing IRAs persuade us that the Rouseys' right to payment from IRAs is causally connected to their age. Their right to receive payment of the entire balance is not in dispute. Because their accounts qualify as IRAs under 26 U.S. C. § 408(a) (2000 ed. and Supp. II), the Rouseys have a nonforfeitable right to the balance held in those accounts, § 408(a)(4). That right is restricted by a 10-percent tax penalty that applies to withdrawals from IRAs made before the accountholder turns 59½. Contrary to Jacoway's contention, this tax penalty is substantial. The deterrent to early withdrawal it creates suggests that Congress designed it to preclude early access to IRAs. The low rates of early withdrawals are consistent with the notion that this penalty substantially deters early withdrawals from such accounts.[1] Because the 10-percent penalty applies proportionally 328 to any amounts withdrawn, it prevents access to the 10 percent that the Rouseys would forfeit should they withdraw early, and thus it effectively prevents access to the entire balance in their IRAs.[2] It therefore limits the Rouseys' right to "payment" of the balance of their IRAs. And because this condition is removed when the accountholder turns age 59½, the Rouseys' right to the balance of their IRAs is a right to payment "on account of" age.[3] The Rouseys no more have an unrestricted right to payment of the balance in their IRAs than a contracting party has an unrestricted right to breach a contract simply because the price of doing so is the payment of damages.[4] Accordingly, 329 we conclude that the Rouseys' IRAs provide a right to payment on account of age. B In addition to requiring that the IRAs provide a right to payment "on account of" age or one of the other factors listed in the statute, 11 U.S. C. § 522(d)(10)(E) also requires the Rouseys' IRAs to be "stock bonus, pension, profitsharing, annuity, or similar plan[s] or contract[s]." No party contends that the Rouseys' IRAs are stock bonus, pension, profitsharing, or annuity plans or contracts. The issue, then, is whether the Rouseys' IRAs are "similar plan[s] or contract[s]" within the meaning of § 522(d)(10)(E). To be "similar," an IRA must be like, though not identical to, the specific plans or contracts listed in § 522(d)(10)(E), and consequently must share characteristics common to the listed plans or contracts. See American Heritage Dictionary of the English Language 1206 (1981) (hereinafter Am. Hert.); Webster's 3d 2120. The Rouseys contend that IRAs are "similar" to stock bonus, pension, profitsharing, or annuity plans or contracts, in that they have the same "primary purpose," namely, "enabl[ing] Americans to save for their retirement." Reply Brief for Petitioners 13. Jacoway counters that IRAs are unlike the listed plans because those plans provide "deferred compensation," Brief for Respondent 22, whereas IRAs allow complete access to deposited funds and are therefore not deferred at all, id., at 22-24. We agree with the Rouseys that IRAs are similar to the plans specified in the statute. Those plans, like the Rouseys' IRAs, provide a substitute for wages (by wages, for present purposes, we mean compensation earned as hourly or salary income), and are not mere savings accounts. The Rouseys' IRAs are therefore 330 "similar plan[s] or contract[s]" within the meaning of § 522(d)(10)(E). We turn first to the characteristics the specific plans and contracts listed in § 522(d)(10)(E) share. The Bankruptcy Code does not define the terms "profitsharing," "stock bonus," "pension," or "annuity." Accordingly, we look to the ordinary meaning of these terms. United States v. LaBonte, 520 U.S. 751, 757 (1997); Perrin v. United States, 444 U.S. 37, 42 (1979). A "profitsharing" plan, of course, is "[a] system by which employees receive a share of the profits of a business enterprise." Am. Hert. 1045.[5] Profitsharing plans may provide deferred compensation, but they may also be "cash plans" in which a predetermined percentage of the profits is distributed to employees at set intervals. J. Langbein & B. Wolk, Pension and Employee Benefit Law 48 (3d ed. 2000). A stock bonus plan is like a profitsharing plan, except that it distributes company stock rather than cash from profits. Id., at 49.[6] A pension is defined as "a fixed sum ... paid under given conditions to a person following his retirement from service (as due to age or disability) or to the surviving dependents of a person entitled to such a pension." Webster's 3d 1671.[7] Finally, an annuity is "an amount payable yearly or at other regular intervals ... for a certain or uncertain period (as for years, for life, or in perpetuity)." Id., at 88.[8] 331 The common feature of all of these plans is that they provide income that substitutes for wages earned as salary or hourly compensation. This understanding of the plans' similarities comports with the other types of payments that a debtor may exempt under § 522(d)(10) all of which concern income that substitutes for wages. See, e. g., § 522(d)(10)(A) ("social security benefit, unemployment compensation, or a local public assistance benefit"); § 522(d)(10)(B) ("a veterans' benefit"); § 522(d)(10)(C) ("disability, illness, or unemployment benefit"); § 522(d)(10)(D) ("alimony, support, or separate maintenance"). But the plans are dissimilar in other respects: Employers establish and contribute to stock bonus, profitsharing, and pension plans or contracts, whereas an individual can establish and contribute to an annuity on terms and conditions he selects. Moreover, pension plans and annuities provide deferred payment, whereas profitsharing or stock bonus plans may or may not provide deferred payment. And while a pension provides retirement income, none of these other plans necessarily provides retirement income. What all of these plans have in common is that they provide income that substitutes for wages. Several considerations convince us that the income the Rouseys will derive from their IRAs is likewise income that substitutes for wages. First, the minimum distribution requirements, as discussed above, require distribution to begin at the latest in the calendar year after the year in which the accountholder turns 70½. Thus, accountholders must begin to withdraw funds when they are likely to be retired and lack wage income. Second, the Internal Revenue Code defers taxation of money held in accounts qualifying as IRAs under 26 U.S. C. § 408(a) (2000 ed. and Supp. II) until the year in which it is distributed, treating it as income only in such years. §§ 219, 408(e) (2000 ed. and Supp. II). This tax treatment further encourages accountholders to wait until 332 retirement to withdraw the funds: The later withdrawal occurs, the longer the taxes on the amounts are deferred. Third, absent the applicability of other exceptions discussed above, withdrawals before age 59½ are subject to a tax penalty, restricting preretirement access to the funds. Finally, to ensure that the beneficiary uses the IRA in his retirement years, an accountholder's failure to take the requisite minimum distributions results in a 50-percent tax penalty on funds improperly remaining in the account. § 4974(a). All of these features show that IRA income substitutes for wages lost upon retirement and distinguish IRAs from typical savings accounts. We find unpersuasive Jacoway's contention that the IRAs cannot be similar plans or contracts because the Rouseys have complete access to them. At bottom, this contention rests, as did her "on account of" argument, on the premise that the tax penalty imposed for early withdrawal is modest and hence not a true limit on the withdrawal of funds. As explained above, however, that penalty erects a substantial barrier to early withdrawal. Supra, at 327-328. Funds in a typical savings account, by contrast, can be withdrawn without age-based penalty. We also reject Jacoway's argument that the availability of IRA withdrawals exempt from the 10-percent penalty renders the Rouseys' IRAs more like savings accounts. While Jacoway is correct that the Internal Revenue Code permits penalty-free early withdrawals in certain limited circumstances, 26 U.S. C. § 72(t)(2), these exceptions do not reduce the IRAs to savings accounts. The exceptions are narrow. For example, penalty-free early distributions for health insurance premiums are limited to unemployed individuals who have received unemployment compensation for at least 12 consecutive weeks and have taken those distributions during the same year in which the unemployment compensation is made. § 72(t)(2)(D). These payments are further limited to the actual amount paid for 333 insurance for the accountholder, his spouse, and his dependents. § 72(t)(2)(D)(iii). The Internal Revenue Code likewise caps the amount of, and sets qualifications for, both the higher education expenses and first-time home purchases for which penalty-free early distributions can be taken. §§ 72(t)(2)(E), 72(t)(7) (higher education expenses); §§ 72(t) (2)(F), 72(t)(8) (home purchases). The Internal Revenue Code also permits penalty-free distributions to a beneficiary on the death of the accountholder or in the event that the accountholder becomes disabled. §§ 72(t)(2)(A)(ii)-(iii).[9] These exceptions are limited in amount and scope. Even with these carveouts, an early withdrawal without penalty remains the exception, rather than the rule. And as we explained in discussing the "on account of" requirement, withdrawals from other retirement plans receive similar tax treatment. Our conclusion that the Rouseys' IRAs can be exempt under 11 U.S. C. § 522(d)(10)(E) finds support in clauses (i)-(iii) of § 522(d)(10)(E). These clauses bring into the estate certain rights to payment that otherwise would be exempt under § 522(d)(10)(E). They provide that a right to receive payment cannot be exempt if: "(i) such plan or contract was established by or under the auspices of an insider that employed the debtor at 334 the time the debtor's rights under such plan or contract arose; "(ii) such payment is on account of age or length of service; and "(iii) such plan or contract does not qualify under section 401(a), 403(a), 403(b) or 408 of the Internal Revenue Code of 1986." Thus, clauses (i)-(iii) preclude the debtor from using this exemption if an insider established his plan or contract; the right to receive payment is on account of age or length of service; and the plan does not qualify under the specified Internal Revenue Code sections, including the section that governs IRAs, 26 U.S. C. § 408 (2000 ed. and Supp. II). As a general matter, it makes little sense to exclude from the exemption plans that fail to qualify under § 408, unless all plans that do qualify under § 408, including IRAs, are generally within the exemption. If IRAs were not within 11 U.S. C. § 522(d)(10)(E), Congress would not have referred to them in its exception. McKown, 203 F. 3d, at 1190. More specifically, clause (iii) suggests that plans qualifying under 26 U.S. C. § 408 (2000 ed. and Supp. II), including IRAs, are similar plans or contracts. The other sections of the Internal Revenue Code cited in clause (iii) §§ 401(a), 403(a), and 403(b) all establish requirements for tax-qualified retirement plans that take the form of, among other things, annuities, profitsharing plans, and stock bonus plans. By grouping § 408 with these other plans that are of the specific types listed in subparagraph (E), clause (iii) suggests that IRAs are similar to them. Thus, the text of these clauses not only suggests generally that the Rouseys' IRAs are exempt, but also supports our conclusion that they are "similar plan[s] or contract[s]" under 11 U.S. C. § 522(d)(10)(E). * * * In sum, the Rouseys' IRAs fulfill both of § 522(d)(10)(E)'s requirements at issue here they confer a right to receive *335 payment on account of age and they are similar plans or contracts to those enumerated in § 522(d)(10)(E). The judgment of the Court of Appeals is therefore reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.	The Bankruptcy Code permits debtors to exempt certain property from the bankruptcy estate, allowing them to retain those assets rather than divide them among their creditors. The question in this case is whether debtors can exempt assets in their Individual Retirement Accounts (IRAs) from the bankruptcy estate pursuant to 522(d)(10)(E). We hold that IRAs can be so exempted. I Petitioners Richard and Betty Jo Rousey were formerly employed at Northrup Grumman Corp. At the termination of their employment, Northrup Grumman required them to take lump-sum distributions from their employer-sponsored pension plans. In re Rousey, ; Brief for Petitioners 2. The Rouseys deposited the lump sums into two IRAs, one in each of their 283 B.R., at The Rouseys' accounts qualify as IRAs under a number of requirements imposed by the Internal Revenue Code. Each account is "a trust created or organized in the United States for the exclusive benefit of an individual or his beneficiaries." 26 U.S. C. 408(a) ( ed. and Supp. II). The Internal 323 Revenue Code limits the types of assets in which IRA-holders may invest their accounts, 408(a)(3), (a)(5), and provides that the balance in IRAs is nonforfeitable, 408(a)(4). It also caps yearly contributions to 408(o)(2). Withdrawals made before the accountholder turns 59½ are, with limited exceptions, subject to a 10-percent tax penalty. 72(t). IRA contributions receive favorable tax treatment. In particular, the Internal Revenue Code generally defers taxation of the money placed in IRAs and the income earned from those sums until the assets are withdrawn. See 219(a) (contributions to IRAs are tax deductible); 408(e)(1) (IRA is tax exempt). Moreover, within a certain timeframe accountholders can, as the Rouseys did here, roll over distributions received from other retirement plans. 408(a)(1). The Internal Revenue Code encourages such rollovers by making them nontaxable. 408(d)(3), 402(c)(1), 403(b)(8), and 457(e)(16). The Rouseys' IRA agreements, as well as relevant regulations, provide that their "entire interest in the custodial account must be, or begin to be, distributed by" April 1 following the calendar yearend in which they reach age 70½. In re Rousey, The IRA agreements permit withdrawal prior to age 59½, but note the federal tax penalties applicable to such distributions. Several years after establishing their IRAs, the Rouseys filed a joint Chapter 7 bankruptcy petition in the United States Bankruptcy Court for the Western District of Arkansas. In the schedules and statements accompanying their petition, the Rouseys sought to shield portions of their IRAs from their creditors by claiming them as exempt from the bankruptcy estate pursuant to 11 U.S. C. 522(d)(10)(E). This exemption provides that a debtor may withdraw from the bankruptcy estate his "right to receive 324 "(E) a payment under a stock bonus, pension, profitsharing, annuity, or similar plan or contract on account of illness, disability, death, age, or length of service, to the extent reasonably necessary for the support of the debtor and any dependent of the debtor." The Bankruptcy Court appointed respondent Jill R. Jacoway as the Chapter 7 Trustee. As Trustee, Jacoway is responsible for overseeing the liquidation of the bankruptcy estate and the distribution of the proceeds. She objected to the Rouseys' claim for the exemption of their IRAs and moved for turnover of those sums to her. The Bankruptcy Court sustained Jacoway's objection and granted her The Rouseys appealed. The Bankruptcy Appellate Panel (BAP) agreed with the Bankruptcy Court that the Rouseys could not exempt their IRAs under 522(d)(10)(E). It concluded that the IRAs were not "`similar plan[s] or contract[s]'" to stock bonus, pension, profitsharing, or annuity plans, because, by contrast to the limited access permitted in such plans, the Rouseys had "unlimited access" to the funds held in their That access also meant, the BAP reasoned, that the Rouseys had complete control over the funds in their IRAs, "subject only to a ten percent tax penalty." Because they had such control, the payments from the IRAs were not "on account of any factor listed in 11 U.S. C. 522(d)(10)(E)." The Rouseys again appealed, and the Court of Appeals for the Eighth Circuit affirmed. The Court of Appeals concluded that, even if the Rouseys' IRAs were "`similar plans or contracts'" to stock bonus, pension, profitsharing, or annuity plans, their IRAs gave them no right to receive payment "`on account of age.'" In re Rousey, Like the BAP, the Court of Appeals reasoned that 325 the Rouseys' right to payment was conditioned neither on age nor on any of the other statutory factors. Their IRAs were instead "readily accessible savings accounts of which the debtors may easily avail themselves (albeit with some discouraging tax consequences) at any time for any purpose." The Court of Appeals recognized that several of its sister Circuits had reached a contrary result. See In re Brucher, ; In re ; In re Dubroff, ; In re Carmichael, 3 We granted certiorari to resolve this division among the Courts of Appeals regarding whether debtors can exempt IRAs from the bankruptcy estate under 11 U.S. C. 522(d)(10)(E). II As a general matter, upon the filing of a petition for bankruptcy, "all legal or equitable interests of the debtor in property" become the property of the bankruptcy estate and will be distributed to the debtor's creditors. 541(a)(1). To help the debtor obtain a fresh start, the Bankruptcy Code permits him to withdraw from the estate certain interests in property, such as his car or home, up to certain values. See, e. g., 522(d); United In this case, the Rouseys claimed their IRAs as exempt under 522(d)(10)(E). Under the terms of the statute, see the Rouseys' right to receive payment under their IRAs must meet three requirements to be exempted under this provision: (1) the right to receive payment must be from "a stock bonus, pension, profitsharing, annuity, or similar plan or contract"; (2) the right to receive payment must be "on account of illness, disability, death, age, or length of service"; and (3) even then, the right to receive payment may be exempted only 326 "to the extent" that it is "reasonably necessary [to] support" the accountholder or his dependents. 522(d)(10)(E). The dispute in this case is whether the Rouseys' IRAs fulfill the first and second requirements. This Court implied that IRAs like the Rouseys' satisfy both elements in There, in construing another section of the Bankruptcy Code, this Court stated that IRAs could be exempted pursuant to 522(d)(10)(E). ("Although a debtor's interest [in an IRA] could not be excluded under 541(c)(2), that interest nevertheless could be exempted under 522(d)(10)(E)" (footnote omitted)). We now reaffirm that statement and conclude that IRAs can be exempted from the bankruptcy estate pursuant to 522(d)(10)(E). A We turn first to the requirement that the payment be "on account of illness, disability, death, age, or length of service." We have interpreted the phrase "on account of" elsewhere within the Bankruptcy Code to mean "because of," thereby requiring a causal connection between the term that the phrase "on account of" modifies and the factor specified in the statute at issue. Bank of America Nat. Trust and Sav. In reaching that conclusion, we noted that "because of" was "certainly the usage meant for the phrase at other places in the [bankruptcy] statute," including the provision at issue here 522(d)(10)(E). This meaning comports with the common understanding of "on account of." See, e. g., Random House Dictionary of the English Language 13 (2d ed. 1987) (listing as definitions "by reason of," "because of"); Webster's Third New International Dictionary 13 (1981) (hereinafter Webster's 3d) (same). The context of this provision does not suggest that Congress deviated from the term's ordinary meaning. Thus, "on account of" in 522(d)(10)(E) requires that the right to receive 327 payment be "because of" illness, disability, death, age, or length of service. Jacoway argues that the Rouseys' right to receive payment from their IRAs is not "because of" these listed factors. In particular, she asserts that the Rouseys can withdraw funds from their IRAs for any reason at all, so long as they are willing to pay a 10-percent penalty. Thus, Jacoway maintains that there is no causal connection between the Rouseys' right to payment and age (or any other factor), because their IRAs provide a right to payment on demand. We disagree. The statutes governing IRAs persuade us that the Rouseys' right to payment from IRAs is causally connected to their age. Their right to receive payment of the entire balance is not in dispute. Because their accounts qualify as IRAs under 26 U.S. C. 408(a) ( ed. and Supp. II), the Rouseys have a nonforfeitable right to the balance held in those accounts, 408(a)(4). That right is restricted by a 10-percent tax penalty that applies to withdrawals from IRAs made before the accountholder turns 59½. Contrary to Jacoway's contention, this tax penalty is substantial. The deterrent to early withdrawal it creates suggests that Congress designed it to preclude early access to The low rates of early withdrawals are consistent with the notion that this penalty substantially deters early withdrawals from such accounts.[1] Because the 10-percent penalty applies proportionally 328 to any amounts withdrawn, it prevents access to the 10 percent that the Rouseys would forfeit should they withdraw early, and thus it effectively prevents access to the entire balance in their [2] It therefore limits the Rouseys' right to "payment" of the balance of their And because this condition is removed when the accountholder turns age 59½, the Rouseys' right to the balance of their IRAs is a right to payment "on account of" age.[3] The Rouseys no more have an unrestricted right to payment of the balance in their IRAs than a contracting party has an unrestricted right to breach a contract simply because the price of doing so is the payment of damages.[4] Accordingly, 329 we conclude that the Rouseys' IRAs provide a right to payment on account of age. B In addition to requiring that the IRAs provide a right to payment "on account of" age or one of the other factors listed in the statute, 11 U.S. C. 522(d)(10)(E) also requires the Rouseys' IRAs to be "stock bonus, pension, profitsharing, annuity, or similar plan[s] or contract[s]." No party contends that the Rouseys' IRAs are stock bonus, pension, profitsharing, or annuity plans or contracts. The issue, then, is whether the Rouseys' IRAs are "similar plan[s] or contract[s]" within the meaning of 522(d)(10)(E). To be "similar," an IRA must be like, though not identical to, the specific plans or contracts listed in 522(d)(10)(E), and consequently must share characteristics common to the listed plans or contracts. See American Heritage Dictionary of the English Language 1206 (1981) (hereinafter Am. Hert.); Webster's 3d 2120. The Rouseys contend that IRAs are "similar" to stock bonus, pension, profitsharing, or annuity plans or contracts, in that they have the same "primary purpose," namely, "enabl[ing] Americans to save for their retirement." Reply Brief for Petitioners 13. Jacoway counters that IRAs are unlike the listed plans because those plans provide "deferred compensation," Brief for Respondent 22, whereas IRAs allow complete access to deposited funds and are therefore not deferred at all, We agree with the Rouseys that IRAs are similar to the plans specified in the statute. Those plans, like the Rouseys' IRAs, provide a substitute for wages (by wages, for present purposes, we mean compensation earned as hourly or salary income), and are not mere savings accounts. The Rouseys' IRAs are therefore 330 "similar plan[s] or contract[s]" within the meaning of 522(d)(10)(E). We turn first to the characteristics the specific plans and contracts listed in 522(d)(10)(E) share. The Bankruptcy Code does not define the terms "profitsharing," "stock bonus," "pension," or "annuity." Accordingly, we look to the ordinary meaning of these terms. United ; A "profitsharing" plan, of course, is "[a] system by which employees receive a share of the profits of a business enterprise." Am. Hert. 1045.[5] Profitsharing plans may provide deferred compensation, but they may also be "cash plans" in which a predetermined percentage of the profits is distributed to employees at set intervals. J. Langbein & B. Wolk, Pension and Employee Benefit Law 48 A stock bonus plan is like a profitsharing plan, except that it distributes company stock rather than cash from profits.[6] A pension is defined as "a fixed sum paid under given conditions to a person following his retirement from service (as due to age or disability) or to the surviving dependents of a person entitled to such a pension." Webster's 3d 1671.[7] Finally, an annuity is "an amount payable yearly or at other regular intervals for a certain or uncertain period (as for years, for life, or in perpetuity)."[8] 331 The common feature of all of these plans is that they provide income that substitutes for wages earned as salary or hourly compensation. This understanding of the plans' similarities comports with the other types of payments that a debtor may exempt under 522(d)(10) all of which concern income that substitutes for wages. See, e. g., 522(d)(10)(A) ("social security benefit, unemployment compensation, or a local public assistance benefit"); 522(d)(10)(B) ("a veterans' benefit"); 522(d)(10)(C) ("disability, illness, or unemployment benefit"); 522(d)(10)(D) ("alimony, support, or separate maintenance"). But the plans are dissimilar in other respects: Employers establish and contribute to stock bonus, profitsharing, and pension plans or contracts, whereas an individual can establish and contribute to an annuity on terms and conditions he selects. Moreover, pension plans and annuities provide deferred payment, whereas profitsharing or stock bonus plans may or may not provide deferred payment. And while a pension provides retirement income, none of these other plans necessarily provides retirement income. What all of these plans have in common is that they provide income that substitutes for wages. Several considerations convince us that the income the Rouseys will derive from their IRAs is likewise income that substitutes for wages. First, the minimum distribution requirements, as discussed above, require distribution to begin at the latest in the calendar year after the year in which the accountholder turns 70½. Thus, accountholders must begin to withdraw funds when they are likely to be retired and lack wage income. Second, the Internal Revenue Code defers taxation of money held in accounts qualifying as IRAs under 26 U.S. C. 408(a) ( ed. and Supp. II) until the year in which it is distributed, treating it as income only in such years. 219, 408(e) ( ed. and Supp. II). This tax treatment further encourages accountholders to wait until 332 retirement to withdraw the funds: The later withdrawal occurs, the longer the taxes on the amounts are deferred. Third, absent the applicability of other exceptions discussed above, withdrawals before age 59½ are subject to a tax penalty, restricting preretirement access to the funds. Finally, to ensure that the beneficiary uses the IRA in his retirement years, an accountholder's failure to take the requisite minimum distributions results in a 50-percent tax penalty on funds improperly remaining in the account. 4974(a). All of these features show that IRA income substitutes for wages lost upon retirement and distinguish IRAs from typical savings accounts. We find unpersuasive Jacoway's contention that the IRAs cannot be similar plans or contracts because the Rouseys have complete access to them. At bottom, this contention rests, as did her "on account of" argument, on the premise that the tax penalty imposed for early withdrawal is modest and hence not a true limit on the withdrawal of funds. As explained above, however, that penalty erects a substantial barrier to early Funds in a typical savings account, by contrast, can be withdrawn without age-based penalty. We also reject Jacoway's argument that the availability of IRA withdrawals exempt from the 10-percent penalty renders the Rouseys' IRAs more like savings accounts. While Jacoway is correct that the Internal Revenue Code permits penalty-free early withdrawals in certain limited circumstances, 26 U.S. C. 72(t)(2), these exceptions do not reduce the IRAs to savings accounts. The exceptions are narrow. For example, penalty-free early distributions for health insurance premiums are limited to unemployed individuals who have received unemployment compensation for at least 12 consecutive weeks and have taken those distributions during the same year in which the unemployment compensation is made. 72(t)(2)(D). These payments are further limited to the actual amount paid for 333 insurance for the accountholder, his spouse, and his dependents. 72(t)(2)(D)(iii). The Internal Revenue Code likewise caps the amount of, and sets qualifications for, both the higher education expenses and first-time home purchases for which penalty-free early distributions can be taken. 72(t)(2)(E), 72(t)(7) (higher education expenses); 72(t) (2)(F), 72(t)(8) (home purchases). The Internal Revenue Code also permits penalty-free distributions to a beneficiary on the death of the accountholder or in the event that the accountholder becomes disabled. 72(t)(2)(A)(ii)-(iii).[9] These exceptions are limited in amount and scope. Even with these carveouts, an early withdrawal without penalty remains the exception, rather than the rule. And as we explained in discussing the "on account of" requirement, withdrawals from other retirement plans receive similar tax treatment. Our conclusion that the Rouseys' IRAs can be exempt under 11 U.S. C. 522(d)(10)(E) finds support in clauses (i)-(iii) of 522(d)(10)(E). These clauses bring into the estate certain rights to payment that otherwise would be exempt under 522(d)(10)(E). They provide that a right to receive payment cannot be exempt if: "(i) such plan or contract was established by or under the auspices of an insider that employed the debtor at 334 the time the debtor's rights under such plan or contract arose; "(ii) such payment is on account of age or length of service; and "(iii) such plan or contract does not qualify under section 401(a), 403(a), 403(b) or 408 of the Internal Revenue Code of 1986." Thus, clauses (i)-(iii) preclude the debtor from using this exemption if an insider established his plan or contract; the right to receive payment is on account of age or length of service; and the plan does not qualify under the specified Internal Revenue Code sections, including the section that governs IRAs, 26 U.S. C. 408 ( ed. and Supp. II). As a general matter, it makes little sense to exclude from the exemption plans that fail to qualify under 408, unless all plans that do qualify under 408, including IRAs, are generally within the exemption. If IRAs were not within 11 U.S. C. 522(d)(10)(E), Congress would not have referred to them in its exception. 203 F. 3d, at More specifically, clause (iii) suggests that plans qualifying under 26 U.S. C. 408 ( ed. and Supp. II), including IRAs, are similar plans or contracts. The other sections of the Internal Revenue Code cited in clause (iii) 401(a), 403(a), and 403(b) all establish requirements for tax-qualified retirement plans that take the form of, among other things, annuities, profitsharing plans, and stock bonus plans. By grouping 408 with these other plans that are of the specific types listed in subparagraph (E), clause (iii) suggests that IRAs are similar to them. Thus, the text of these clauses not only suggests generally that the Rouseys' IRAs are exempt, but also supports our conclusion that they are "similar plan[s] or contract[s]" under 11 U.S. C. 522(d)(10)(E). * * * In sum, the Rouseys' IRAs fulfill both of 522(d)(10)(E)'s requirements at issue here they confer a right to receive *335 payment on account of age and they are similar plans or contracts to those enumerated in 522(d)(10)(E). The judgment of the Court of Appeals is therefore reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.	2,084
Justice Rehnquist	majority	false	Maryland v. Pringle	2003-12-15	null	https://www.courtlistener.com/opinion/131150/maryland-v-pringle/	https://www.courtlistener.com/api/rest/v3/clusters/131150/	2,003	2003-019	1	9	0	In the early morning hours a passenger car occupied by three men was stopped for speeding by a police officer. The 368 officer, upon searching the car, seized $763 of rolled-up cash from the glove compartment and five glassine baggies of cocaine from between the back-seat armrest and the back seat. After all three men denied ownership of the cocaine and money, the officer arrested each of them. We hold that the officer had probable cause to arrest Pringle one of the three men. At 3:16 a.m. on August 7, 1999, a Baltimore County Police officer stopped a Nissan Maxima for speeding. There were three occupants in the car: Donte Partlow, the driver and owner, respondent Pringle, the front-seat passenger, and Otis Smith, the back-seat passenger. The officer asked Partlow for his license and registration. When Partlow opened the glove compartment to retrieve the vehicle registration, the officer observed a large amount of rolled-up money in the glove compartment. The officer returned to his patrol car with Partlow's license and registration to check the computer system for outstanding violations. The computer check did not reveal any violations. The officer returned to the stopped car, had Partlow get out, and issued him an oral warning. After a second patrol car arrived, the officer asked Partlow if he had any weapons or narcotics in the vehicle. Partlow indicated that he did not. Partlow then consented to a search of the vehicle. The search yielded $763 from the glove compartment and five plastic glassine baggies containing cocaine from behind the back-seat armrest. When the officer began the search the armrest was in the upright position flat against the rear seat. The officer pulled down the armrest and found the drugs, which had been placed between the armrest and the back seat of the car. The officer questioned all three men about the ownership of the drugs and money, and told them that if no one admitted to ownership of the drugs he was going to arrest them all. The men offered no information regarding the ownership 369 of the drugs or money. All three were placed under arrest and transported to the police station. Later that morning, Pringle waived his rights under Miranda v. Arizona, 384 U.S. 436 (1966), and gave an oral and written confession in which he acknowledged that the cocaine belonged to him, that he and his friends were going to a party, and that he intended to sell the cocaine or "[u]se it for sex." App. 26. Pringle maintained that the other occupants of the car did not know about the drugs, and they were released. The trial court denied Pringle's motion to suppress his confession as the fruit of an illegal arrest, holding that the officer had probable cause to arrest Pringle. A jury convicted Pringle of possession with intent to distribute cocaine and possession of cocaine. He was sentenced to 10 years' incarceration without the possibility of parole. The Court of Special Appeals of Maryland affirmed. 141 Md. App. 292, 785 A.2d 790 (2001). The Court of Appeals of Maryland, by divided vote, reversed, holding that, absent specific facts tending to show Pringle's knowledge and dominion or control over the drugs, "the mere finding of cocaine in the back armrest when [Pringle] was a front seat passenger in a car being driven by its owner is insufficient to establish probable cause for an arrest for possession." 370 Md. 525, 545, 805 A.2d 1016, 1027 (2002). We granted certiorari, 538 U.S. 921 (2003), and now reverse. Under the Fourth Amendment, made applicable to the States by the Fourteenth Amendment, Mapp v. Ohio, 367 U.S. 643 (1961), the people are "to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, . . . and no Warrants shall issue, but upon probable cause. . . ." U.S. Const., Amdt. 4. Maryland law authorizes police officers to execute warrantless arrests, inter alia, for felonies committed in an officer's presence or where an officer has probable cause to believe that a felony 370 has been committed or is being committed in the officer's presence. Md. Ann. Code, Art. 27, § 594B (1996) (repealed 2001). A warrantless arrest of an individual in a public place for a felony, or a misdemeanor committed in the officer's presence, is consistent with the Fourth Amendment if the arrest is supported by probable cause. United States v. Watson, 423 U.S. 411, 424 (1976); see Atwater v. Lago Vista, 532 U.S. 318, 354 (2001) (stating that "[i]f 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"). It is uncontested in the present case that the officer, upon recovering the five plastic glassine baggies containing suspected cocaine, had probable cause to believe a felony had been committed. Md. Ann. Code, Art. 27, § 287 (1996) (repealed 2002) (prohibiting possession of controlled dangerous substances). The sole question is whether the officer had probable cause to believe that Pringle committed that crime.[1] The long-prevailing standard of probable cause protects "citizens from rash and unreasonable interferences with privacy and from unfounded charges of crime," while giving "fair leeway for enforcing the law in the community's protection." Brinegar v. United States, 338 U.S. 160, 176 (1949). On many occasions, we have reiterated that the probable-cause standard is a "`practical, nontechnical conception'" that deals with "`the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.'" Illinois v. Gates, 462 U.S. 213, 231 (1983) (quoting Brinegar, supra, at 175-176); see, e. g., Ornelas v. United States, 517 U.S. 690, 695 (1996); United States v. Sokolow, 490 U.S. 1, 7-8 (1989). "[P]robable cause is a fluid 371 concept turning on the assessment of probabilities in particular factual contexts not readily, or even usefully, reduced to a neat set of legal rules." Gates, 462 U.S., at 232. The probable-cause standard is incapable of precise definition or quantification into percentages because it deals with probabilities and depends on the totality of the circumstances. See ibid.; Brinegar, 338 U. S., at 175. We have stated, however, that "[t]he substance of all the definitions of probable cause is a reasonable ground for belief of guilt," ibid. (internal quotation marks and citations omitted), and that the belief of guilt must be particularized with respect to the person to be searched or seized, Ybarra v. Illinois, 444 U.S. 85, 91 (1979). In Illinois v. Gates, we noted: "As early as Locke v. United States, 7 Cranch 339, 348 (1813), Chief Justice Marshall observed, in a closely related context: `[T]he term "probable cause," according to its usual acceptation, means less than evidence which would justify condemnation. . . . It imports a seizure made under circumstances which warrant suspicion.' More recently, we said that `the quanta . . . of proof' appropriate in ordinary judicial proceedings are inapplicable to the decision to issue a warrant. Brinegar, 338 U. S., at 173. Finely tuned standards such as proof beyond a reasonable doubt or by a preponderance of the evidence, useful in formal trials, have no place in the [probable-cause] decision." 462 U.S., at 235. To determine whether an officer had probable cause to arrest an individual, we examine the events leading up to the arrest, and then decide "whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to" probable cause, Ornelas, supra, at 696. In this case, Pringle was one of three men riding in a Nissan Maxima at 3:16 a.m. There was $763 of rolled-up cash 372 in the glove compartment directly in front of Pringle.[2] Five plastic glassine baggies of cocaine were behind the back-seat armrest and accessible to all three men. Upon questioning, the three men failed to offer any information with respect to the ownership of the cocaine or the money. We think it an entirely reasonable inference from these facts that any or all three of the occupants had knowledge of, and exercised dominion and control over, the cocaine. Thus, a reasonable officer could conclude that there was probable cause to believe Pringle committed the crime of possession of cocaine, either solely or jointly. Pringle's attempt to characterize this case as a guilt-by-association case is unavailing. His reliance on Ybarra v. Illinois, supra, and United States v. Di Re, 332 U.S. 581 (1948), is misplaced. In Ybarra, police officers obtained a warrant to search a tavern and its bartender for evidence of possession of a controlled substance. Upon entering the tavern, the officers conducted patdown searches of the customers present in the tavern, including Ybarra. Inside a cigarette pack retrieved from Ybarra's pocket, an officer found six tinfoil packets containing heroin. We stated: "[A] person's mere propinquity to others independently suspected of criminal activity does not, without more, 373 give rise to probable cause to search that person. Sibron v. New York, 392 U.S. 40, 62-63 (1968). Where the standard is probable cause, a search or seizure of a person must be supported by probable cause particularized with respect to that person. This requirement cannot be undercut or avoided by simply pointing to the fact that coincidentally there exists probable cause to search or seize another or to search the premises where the person may happen to be." 444 U.S., at 91. We held that the search warrant did not permit body searches of all of the tavern's patrons and that the police could not pat down the patrons for weapons, absent individualized suspicion. Id., at 92. This case is quite different from Ybarra. Pringle and his two companions were in a relatively small automobile, not a public tavern. In Wyoming v. Houghton, 526 U.S. 295 (1999), we noted that "a car passenger unlike the unwitting tavern patron in Ybarra will often be engaged in a common enterprise with the driver, and have the same interest in concealing the fruits or the evidence of their wrongdoing." Id., at 304-305. Here we think it was reasonable for the officer to infer a common enterprise among the three men. The quantity of drugs and cash in the car indicated the likelihood of drug dealing, an enterprise to which a dealer would be unlikely to admit an innocent person with the potential to furnish evidence against him. In Di Re, a federal investigator had been told by an informant, Reed, that he was to receive counterfeit gasoline ration coupons from a certain Buttitta at a particular place. The investigator went to the appointed place and saw Reed, the sole occupant of the rear seat of the car, holding gasoline ration coupons. There were two other occupants in the car: Buttitta in the driver's seat and Di Re in the front passenger's seat. Reed informed the investigator that Buttitta had given him counterfeit coupons. Thereupon, all three men were arrested and searched. After noting that the officers had no information implicating *374 Di Re and no information pointing to Di Re's possession of coupons, unless presence in the car warranted that inference, we concluded that the officer lacked probable cause to believe that Di Re was involved in the crime. 332 U.S., at 592-594. We said "[a]ny inference that everyone on the scene of a crime is a party to it must disappear if the Government informer singles out the guilty person." Id., at 594. No such singling out occurred in this case; none of the three men provided information with respect to the ownership of the cocaine or money. We hold that the officer had probable cause to believe that Pringle had committed the crime of possession of a controlled substance. Pringle's arrest therefore did not contravene the Fourth and Fourteenth Amendments. Accordingly, the judgment of the Court of Appeals of Maryland is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered.	In the early morning hours a passenger car occupied by three men was stopped for speeding by a police officer. The 368 officer, upon searching the car, seized $763 of rolled-up cash from the glove compartment and five glassine baggies of cocaine from between the back-seat armrest and the back seat. After all three men denied ownership of the cocaine and money, the officer arrested each of them. We hold that the officer had probable cause to arrest Pringle one of the three men. At 3:16 a.m. on August 7, 1999, a Baltimore County Police officer stopped a Nissan Maxima for speeding. There were three occupants in the car: Donte Partlow, the driver and owner, respondent Pringle, the front-seat passenger, and Otis Smith, the back-seat passenger. The officer asked Partlow for his license and registration. When Partlow opened the glove compartment to retrieve the vehicle registration, the officer observed a large amount of rolled-up money in the glove compartment. The officer returned to his patrol car with Partlow's license and registration to check the computer system for outstanding violations. The computer check did not reveal any violations. The officer returned to the stopped car, had Partlow get out, and issued him an oral warning. After a second patrol car arrived, the officer asked Partlow if he had any weapons or narcotics in the vehicle. Partlow indicated that he did not. Partlow then consented to a search of the vehicle. The search yielded $763 from the glove compartment and five plastic glassine baggies containing cocaine from behind the back-seat armrest. When the officer began the search the armrest was in the upright position flat against the rear seat. The officer pulled down the armrest and found the drugs, which had been placed between the armrest and the back seat of the car. The officer questioned all three men about the ownership of the drugs and money, and told them that if no one admitted to ownership of the drugs he was going to arrest them all. The men offered no information regarding the ownership 369 of the drugs or money. All three were placed under arrest and transported to the police station. Later that morning, Pringle waived his rights under and gave an oral and written confession in which he acknowledged that the cocaine belonged to him, that he and his friends were going to a party, and that he intended to sell the cocaine or "[u]se it for sex." App. 26. Pringle maintained that the other occupants of the car did not know about the drugs, and they were released. The trial court denied Pringle's motion to suppress his confession as the fruit of an illegal arrest, holding that the officer had probable cause to arrest Pringle. A jury convicted Pringle of possession with intent to distribute cocaine and possession of cocaine. He was sentenced to 10 years' incarceration without the possibility of parole. The Court of Special Appeals of Maryland affirmed. The Court of Appeals of Maryland, by divided vote, reversed, holding that, absent specific facts tending to show Pringle's knowledge and dominion or control over the drugs, "the mere finding of cocaine in the back armrest when [Pringle] was a front seat passenger in a car being driven by its owner is insufficient to establish probable cause for an arrest for possession." We granted certiorari, and now reverse. Under the Fourth Amendment, made applicable to the States by the Fourteenth Amendment, the people are "to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, and no Warrants shall issue, but upon probable cause." U.S. Const., Amdt. 4. Maryland law authorizes police officers to execute warrantless arrests, inter alia, for felonies committed in an officer's presence or where an officer has probable cause to believe that a felony 370 has been committed or is being committed in the officer's presence. Md. Ann. Code, Art. 27, 594B A warrantless arrest of an individual in a public place for a felony, or a misdemeanor committed in the officer's presence, is consistent with the Fourth Amendment if the arrest is supported by probable cause. United ; see It is uncontested in the present case that the officer, upon recovering the five plastic glassine baggies containing suspected cocaine, had probable cause to believe a felony had been committed. Md. Ann. Code, Art. 27, 287 (prohibiting possession of controlled dangerous substances). The sole question is whether the officer had probable cause to believe that Pringle committed that [1] The long-prevailing standard of probable cause protects "citizens from rash and unreasonable interferences with privacy and from unfounded charges of crime," while giving "fair leeway for enforcing the law in the community's protection." On many occasions, we have reiterated that the probable-cause standard is a "`practical, nontechnical conception'" that deals with "`the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.'" (quoting at 175-); see, e. g., ; United "[P]robable cause is a fluid 371 concept turning on the assessment of probabilities in particular factual contexts not readily, or even usefully, reduced to a neat set of legal rules." The probable-cause standard is incapable of precise definition or quantification into percentages because it deals with probabilities and depends on the totality of the circumstances. See ; We have stated, however, that "[t]he substance of all the definitions of probable cause is a reasonable ground for belief of guilt," and that the belief of guilt must be particularized with respect to the person to be searched or seized, In we noted: "As early as Chief Justice Marshall observed, in a closely related context: `[T]he term "probable cause," according to its usual acceptation, means less than evidence which would justify condemnation. It imports a seizure made under circumstances which warrant suspicion.' More recently, we said that `the quanta of proof' appropriate in ordinary judicial proceedings are inapplicable to the decision to issue a warrant. Finely tuned standards such as proof beyond a reasonable doubt or by a preponderance of the evidence, useful in formal trials, have no place in the [probable-cause] decision." To determine whether an officer had probable cause to arrest an individual, we examine the events leading up to the arrest, and then decide "whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to" probable cause, In this case, Pringle was one of three men riding in a Nissan Maxima at 3:16 a.m. There was $763 of rolled-up cash 372 in the glove compartment directly in front of Pringle.[2] Five plastic glassine baggies of cocaine were behind the back-seat armrest and accessible to all three men. Upon questioning, the three men failed to offer any information with respect to the ownership of the cocaine or the money. We think it an entirely reasonable inference from these facts that any or all three of the occupants had knowledge of, and exercised dominion and control over, the cocaine. Thus, a reasonable officer could conclude that there was probable cause to believe Pringle committed the crime of possession of cocaine, either solely or jointly. Pringle's attempt to characterize this case as a guilt-by-association case is unavailing. His reliance on and United States v. Di Re, is misplaced. In Ybarra, police officers obtained a warrant to search a tavern and its bartender for evidence of possession of a controlled substance. Upon entering the tavern, the officers conducted patdown searches of the customers present in the tavern, including Ybarra. Inside a cigarette pack retrieved from Ybarra's pocket, an officer found six tinfoil packets containing heroin. We stated: "[A] person's mere propinquity to others independently suspected of criminal activity does not, without more, 373 give rise to probable cause to search that person. Where the standard is probable cause, a search or seizure of a person must be supported by probable cause particularized with respect to that person. This requirement cannot be undercut or avoided by simply pointing to the fact that coincidentally there exists probable cause to search or seize another or to search the premises where the person may happen to be." 444 U.S., at We held that the search warrant did not permit body searches of all of the tavern's patrons and that the police could not pat down the patrons for weapons, absent individualized suspicion. This case is quite different from Ybarra. Pringle and his two companions were in a relatively small automobile, not a public tavern. In we noted that "a car passenger unlike the unwitting tavern patron in Ybarra will often be engaged in a common enterprise with the driver, and have the same interest in concealing the fruits or the evidence of their wrongdoing." Here we think it was reasonable for the officer to infer a common enterprise among the three men. The quantity of drugs and cash in the car indicated the likelihood of drug dealing, an enterprise to which a dealer would be unlikely to admit an innocent person with the potential to furnish evidence against him. In Di Re, a federal investigator had been told by an informant, Reed, that he was to receive counterfeit gasoline ration coupons from a certain Buttitta at a particular place. The investigator went to the appointed place and saw Reed, the sole occupant of the rear seat of the car, holding gasoline ration coupons. There were two other occupants in the car: Buttitta in the driver's seat and Di Re in the front passenger's seat. Reed informed the investigator that Buttitta had given him counterfeit coupons. Thereupon, all three men were arrested and searched. After noting that the officers had no information implicating *374 Di Re and no information pointing to Di Re's possession of coupons, unless presence in the car warranted that inference, we concluded that the officer lacked probable cause to believe that Di Re was involved in the -594. We said "[a]ny inference that everyone on the scene of a crime is a party to it must disappear if the Government informer singles out the guilty person." No such singling out occurred in this case; none of the three men provided information with respect to the ownership of the cocaine or money. We hold that the officer had probable cause to believe that Pringle had committed the crime of possession of a controlled substance. Pringle's arrest therefore did not contravene the Fourth and Fourteenth Amendments. Accordingly, the judgment of the Court of Appeals of Maryland is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered.	2,085
Justice Sotomayor	majority	false	Chase Bank USA, N. A. v. McCoy	2011-01-24	null	https://www.courtlistener.com/opinion/184061/chase-bank-usa-n-a-v-mccoy/	https://www.courtlistener.com/api/rest/v3/clusters/184061/	2,011	null	null	null	null	As applicable to this case, Regulation Z—promulgated by the Board of Governors of the Federal Reserve System (Board) pursuant to its authority under the Truth in Lending Act (TILA), 82 Stat. 146, 15 U.S. C. §1601 et seq.—requires that issuers of credit cards provide card holders with an “[i]nitial disclosure statement” specifying, inter alia, “each periodic rate” associated with the account. 12 CFR §226.6(a)(2) (2008). The regulation also imposes “[s]ubsequent disclosure requirements,” including notice to cardholders “[w]henever any term required to be disclosed under §226.6 is changed.” §226.9(c)(1). This case presents the question whether Regulation Z requires an issuer to notify a cardholder of an interest-rate increase instituted pursuant to a provision of the cardholder agreement giv ing the issuer discretion to increase the rate, up to a stated maximum, in the event of the cardholder’s delin quency or default. We conclude that the version of Reg- ulation Z applicable in this case does not require such notice. 2 CHASE BANK USA, N. A. v. MCCOY Opinion of the Court I A Congress passed TILA to promote consumers’ “informed use of credit” by requiring “meaningful disclosure of credit terms,” 15 U.S. C. §1601(a), and granted the Board the authority to issue regulations to achieve TILA’s purposes, §1604(a). Pursuant to this authority, the Board promul gated Regulation Z, which requires credit card issuers to disclose certain information to consumers.1 Two provi sions of Regulation Z are at issue in this case. The first, 12 CFR §226.6, explains what information credit card issuers are obliged to provide to cardholders in the “[i]nitial disclosure statement,” including “each periodic rate that may be used to compute the finance charge.” §226.6(a)(2). The second, §226.9, imposes upon issuers certain “[s]ubsequent disclosure requirements,” including a requirement to provide notice “[w]henever any term required to be disclosed under §226.6 is changed.” §226.9(c)(1). As a general matter, notice of a change in terms has to be provided 15 days in advance of the effec tive date of the change. Ibid. When “a periodic rate or other finance charge is increased because of the con sumer’s delinquency or default,” however, notice only need be given “before the effective date of the change.” Ibid. Regulation Z also explains that no notice is required under §226.9 when the change in terms “results from . . . the consumer’s default or delinquency (other than an increase in the periodic rate or other finance charge).” §226.9(c)(2). The official interpretation of Regulation Z (Official Staff Commentary or Commentary) promulgated by the Board —————— 1 As discussed more fully below, see infra, at 4–5, in 2009 the Board amended Regulation Z, such that the provisions discussed in this opinion are no longer in effect. However, because the pre-2009 provi sions are the ones applicable to the case before us, we will refer to them in the present tense. Cite as: 562 U. S. ____ (2011) 3 Opinion of the Court explains these requirements further: Section 226.9(c)(1)’s notice-of-change requirement does not apply “if the spe cific change is set forth initially, such as . . . an increase that occurs when the consumer has been under an agree ment to maintain a certain balance in a savings account in order to keep a particular rate and the account balance falls below the specified minimum.” 12 CFR pt. 226, Supp. I, Comment 9(c)–1, p. 506 (2008) (hereinafter Comment 9(c)–1). On the other hand, the Commentary explains, “notice must be given if the contract allows the creditor to increase the rate at its discretion but does not include specific terms for an increase (for example, when an in crease may occur under the creditor’s contract reservation right to increase the periodic rate).” Ibid. As to the timing requirements, the Commentary states: “[A] notice of change in terms is required, but it may be mailed or deliv ered as late as the effective date of the change . . . [i]f there is an increased periodic rate or any other finance charge attributable to the consumer’s delinquency or default.” Id., Comment 9(c)(1)–3, at 507 (hereinafter Comment 9(c)(1)–3). At least as early as 2004, the Board began considering revisions to Regulation Z. The new regulations the Board eventually issued do not apply to the present case, but the details of their promulgation provide useful background in considering the parties’ arguments with respect to the version of Regulation Z we address here. In 2004 the Board issued an advance notice of proposed rulemaking announcing its intent to consider revisions. 69 Fed. Reg. 70925 (2004). In so doing, the Board described how it understood the notice requirements to function at that time: “[A]dvance notice is not required in all cases. For ex ample, if the interest rate or other finance charge in creases due to a consumer’s default or delinquency, 4 CHASE BANK USA, N. A. v. MCCOY Opinion of the Court notice is required, but need not be given in advance. 12 CFR 226.9(c)(1); comment 9(c)(1)–3. And no change-in-terms notice is required if the creditor specifies in advance the circumstances under which an increase to the finance charge or an annual fee will occur. Comment 9(c)–1. For example, some credit card account agreements permit the card issuer to in crease the interest rate if the consumer pays late . . . . Under Regulation Z, because the circumstances are specified in advance in the account agreement, the creditor need not provide a change-in-terms notice 15 days in advance of the increase; the new rate will ap pear on the periodic statement for the cycle in which the increase occurs.” Id., at 70931–70932. The Board asked for public comment on whether these “existing disclosure rules” were “adequate to enable con sumers to make timely decisions about how to manage their accounts.” Id., at 70932. Subsequently, in 2007, the Board published proposed amendments to Regulation Z and the Commentary. 72 Fed. Reg. 32948. One amendment would have required 45 days’ advance written notice when “(i) [a] rate is increased due to the consumer’s delinquency or default; or (ii) [a] rate is increased as a penalty for one or more events spec ified in the account agreement, such as making a late payment or obtaining an extension of credit that exceeds the credit limit.” Id., at 33058 (proposed 12 CFR §226.9(g)). The Board explained that, under the amend ments, “creditors would no longer be permitted to provide for the immediate application of penalty pricing upon the occurrence of certain events specified in the contract.” 72 Fed. Reg. 33012. In January 2009, the Board promulgated a final rule implementing many of the proposed changes, scheduled to be effective July 1, 2010. 74 Fed. Reg. 5244. Most sali Cite as: 562 U. S. ____ (2011) 5 Opinion of the Court ently, the Board included a new provision, §226.9(g), which requires 45 days’ advance notice of increases in rates due to cardholder delinquency or default, or as a penalty, including penalties for “events specified in the account agreement, such as making a late payment . . . .” 12 CFR §226.9(g)(1)(2010). In May 2009, Congress en acted the Credit Card Accountability Responsibility and Disclosure Act (Credit CARD Act or Act), 123 Stat. 1734. The Act amended TILA, in relevant part, to require 45 days’ advance notice of most increases in credit card an nual percentage rates. 15 U.S. C. §1637(i) (2006 ed., Supp. III). Because the Credit CARD Act’s notice re quirements with respect to interest-rate increases largely mirror the requirements in the new version of the regu- lation, the Board changed the effective date of those requirements to August 20, 2009, to coincide with the statutory schedule. See 74 Fed. Reg. 36077–36079. The transactions giving rise to the dispute at issue in this case, however, arose prior to enactment of the Act and the promulgation of the new regulatory provisions. B Respondent James A. McCoy brought this action in the Superior Court of Orange County, California on behalf of himself and others similarly situated against petitioner Chase Bank USA, N. A.; Chase removed the action to the United States District Court for the Central District of California under 28 U.S. C. §1441. At the time of the transactions at issue, McCoy was the holder of a credit card issued by Chase. The cardholder agreement between the parties (Agreement) provides, in relevant part, that McCoy is eligible for “Preferred rates,” but that to keep such rates he has to meet certain conditions, including making “at least the required minimum payments when due on [his] Account and on all other loans or accounts with [Chase] and [his] other creditors.” Brief for Respon 6 CHASE BANK USA, N. A. v. MCCOY Opinion of the Court dent 8, n. 2; see also 559 F.3d 963, 972, n. 1 (CA9 2009) (Cudahy, J., dissenting). If any of the conditions in the Agreement are not met, Chase reserves the right to “change [McCoy’s] interest rate and impose a Non- Preferred rate up to the maximum Non-Preferred rate described in the Pricing Schedule” and to apply any changes “to existing as well as new balances . . . effective with the billing cycle ending on the review date.” Brief for Respondent 8, n. 2. McCoy’s complaint alleges that Chase increased his interest rate due to his delinquency or default, and applied that increase retroactively. McCoy asserts that the rate increase violates Regulation Z because, pursuant to the Agreement, Chase did not notify him of the increase until after it had taken effect.2 The District Court dismissed McCoy’s complaint, holding that because the increase did not constitute a “change in terms” as contemplated by §226.9(c), Chase was not required to notify him of the increase before implementing it. See App. to Pet. for Cert. 37a–47a. A divided panel of the United States Court of Appeals for the Ninth Circuit reversed in relevant part, holding that Regulation Z requires issuers to provide notice of an interest-rate increase prior to its effective date. See 559 F.3d, at 969. Concluding that the text of Regulation Z is ambiguous and that the agency commentary accompany ing the 2004 request for comments and the 2007 proposed amendments favors neither party’s interpretation, the court relied primarily on the Official Staff Commentary; in particular, the court noted that Comment 9(c)–1 requires no notice of a change in terms if the “specific change” at —————— 2 McCoy also asserted various state-law claims that are not before us. We note that McCoy’s complaint provides little detail regarding the transactions at issue in this case. The parties, however, are in agree ment as to the essential facts alleged. Cite as: 562 U. S. ____ (2011) 7 Opinion of the Court issue is set forth in the initial agreement. See id., at 965– 967. The court found, however, that because the Agree ment vests Chase with discretion to impose any Non- Preferred rate it chooses (up to the specified maximum) upon McCoy’s default, the Agreement “provides McCoy with no basis for predicting in advance what retroactive interest rate Chase will choose to charge him if he de faults.” Id., at 967. Accordingly, the court held that be cause the Agreement does not alert McCoy to the “specific change” that will occur if he defaults, Chase was obliged to give notice of that change prior to its effective date. Ibid. Relying primarily on the 2004 notice of proposed rulemak ing and the 2007 proposed amendments, the dissenting judge concluded that Regulation Z does not require notice of an interest-rate increase in the circumstances of this case. See id., at 972–979 (opinion of Cudahy, J.). After the Ninth Circuit’s ruling, the United States Court of Appeals for the First Circuit decided the same question in Chase’s favor. See Shaner v. Chase Bank USA, N. A., 587 F.3d 488 (2009). The First Circuit relied in part on an amicus brief submitted by the Board at the court’s request, in which the agency advanced the same interpre tation of Regulation Z that it now does before this Court. Id., at 493. We granted certiorari to resolve this division in authority.3 561 U. S. ___ (2010). II In order to decide this case, we must determine whether an interest-rate increase constitutes a “change in terms” under Regulation Z, when the change is made pursuant to a provision in the cardholder agreement allowing the —————— 3 The United States Court of Appeals for the Seventh Circuit has also rejected the reasoning of the Ninth Circuit, though on a different question than the one presented in this case. See Swanson v. Bank of America, N. A., 559 F.3d 653, reh’g denied, 563 F.3d 634 (2009) (disagreeing with the Ninth Circuit’s interpretation of Regulation Z). 8 CHASE BANK USA, N. A. v. MCCOY Opinion of the Court issuer to increase the rate, up to a stated maximum, in the event of the cardholder’s delinquency or default. Accord ingly, this case calls upon us to determine the meaning of a regulation promulgated by the Board under its statutory authority. The parties dispute the proper interpretation of the regulation itself, as well as whether we should accord deference to the Board’s interpretation of its regulation. As explained below, we conclude that the text of the regu lation is ambiguous, and that deference is warranted to the interpretation of that text advanced by the Board in its amicus brief. A Our analysis begins with the text of Regulation Z in effect at the time this dispute arose. First, §226.6 requires an “[i]nitial disclosure statement”: “The creditor shall disclose to the consumer, in ter minology consistent with that to be used on the peri odic statement, each of the following items, to the extent applicable: “(a) Finance charge. The circumstances under which a finance charge will be imposed and an expla nation of how it will be determined, as follows: . . . . . “(2) A disclosure of each periodic rate that may be used to compute the finance charge, the range of bal ances to which it is applicable, and the corresponding annual percentage rate. When different periodic rates apply to different types of transactions, the types of transactions to which the periodic rates apply shall also be disclosed.” (Footnotes omitted.) Second, §226.9(c) requires certain “[s]ubsequent disclosure requirements”: “Change in terms—(1) Written notice required. Whenever any term required to be disclosed under Cite as: 562 U. S. ____ (2011) 9 Opinion of the Court §226.6 is changed or the required minimum periodic payment is increased, the creditor shall mail or de liver written notice of the change to each consumer who may be affected. The notice shall be mailed or delivered at least 15 days prior to the effective date of the change. The 15-day timing requirement does not apply if the change has been agreed to by the con sumer, or if a periodic rate or other finance charge is increased because of the consumer’s delinquency or default; the notice shall be given, however, before the effective date of the change. “(2) Notice not required. No notice under this sec tion is required when the change . . . results from . . . the consumer’s default or delinquency (other than an increase in the periodic rate or other finance charge).” The question is whether the increase in McCoy’s inter est rate constitutes a change to a “term required to be disclosed under §226.6,” requiring a subsequent disclosure under §226.9(c)(1). One of the initial terms that must be disclosed under §226.6 is “each periodic rate that may be used to compute the finance charge . . . and the corre sponding annual percentage rate.” §226.6(a)(2). McCoy argues that, because an increase in the interest rate in creases the “periodic rate” applicable to his account, such an increase constitutes a change in terms within the meaning of §226.9(c)(1). As further support, McCoy points to two provisions in §226.9(c): first, that notice of an in crease in the interest rate must be provided “before the effective date of the change” when the increase is due to “the consumer’s delinquency or default,” §226.9(c)(1); and second, that no notice is required of a change resulting “from the consumer’s default or delinquency (other than an increase in the periodic rate or other finance charge),” §226.9(c)(2). Accordingly, because §226.9(c) includes interest-rate increases due to delinquency or default, 10 CHASE BANK USA, N. A. v. MCCOY Opinion of the Court McCoy argues that the plain text of the regulation indi cates that a change in the periodic rate due to such default is a “change in terms” requiring notice under §226.9(c)(1). We recognize that McCoy’s argument has some force; read in isolation, the language quoted above certainly suggests that credit card issuers must provide notice of an interest-rate increase imposed pursuant to cardholder delinquency or default. But McCoy’s analysis begs the key question: whether the increase actually changed a “term” of the Agreement that was “required to be disclosed under §226.6.” If not, §226.9(c)’s subsequent notice requirement with respect to a “change in terms” does not apply. Chase argues precisely this: The increase did not change a term in the Agreement, but merely implemented one that had been initially disclosed, as required. This interpretation, though not commanded by the text of the regulation, is reasonable. Section 226.6(a)(2) requires initial disclosure of “each periodic rate that may be used to compute the finance charge.” The Agreement itself discloses both the initial rate (Preferred rate) and the maximum rate to be imposed in the event of default (Non-Preferred rate). See Brief for Respondent 8, n. 2; Brief for Petitioner 13–14.4 Accordingly, it is plausible to understand the Agreement to initially disclose “each periodic rate” to be applied to the account, and Chase arguably did not “change” those rates as a result of McCoy’s default. Instead, Chase merely implemented the previously disclosed term specifying the Non-Preferred rate.5 —————— 4 The Pricing Schedule referred to in the Agreement is not contained in the case record, nor are its contents apparent from the parties’ briefs, but neither side disputes that it specified a maximum Non-Preferred rate applicable to the Agreement. 5 We are not persuaded by McCoy’s argument that, although Chase did not change a “contract term” when it raised his interest rate pursu ant to the terms of the Agreement, it changed a “credit term,” thereby triggering §226.9(c)’s notice requirement. The relevant text of Regula Cite as: 562 U. S. ____ (2011) 11 Opinion of the Court This reading still leaves the question why §226.9(c)(1) refers to interest-rate increases resulting from delin quency or default if such increases do not constitute a “change in terms.” One reasonable explanation Chase offers is that §226.9(c)(1) refers to interest-rate increases that were not specifically outlined in the agreement’s initial terms (unlike those in the present Agreement). For example, credit card agreements routinely include a “res ervation of rights” provision giving the issuer discretion to change the terms of the contract, often as a means of responding to events that raise doubts about the card holder’s creditworthiness. An issuer may exercise this general contract-modification authority and raise the interest rate applicable to the account to address any heightened risk. See Brief for Petitioner 6. In such a case, §226.9(c)(1) is best read to require that notice must be given prior to the effective date of the increase, because the unilateral increase instituted by the issuer actually changed a term—the interest rate—in a manner not spe cifically contemplated by the agreement.6 See Comment 9(c)–1 (providing that notice is required if the agreement “does not include specific terms for an increase (for exam —————— tion Z does not refer to, let alone distinguish between, “contract terms” and “credit terms,” and McCoy’s repeated citations to TILA’s broad policy statement do not convince us that such a distinction is war ranted. See 15 U.S. C. §1601(a) (“It is the purpose of this subchapter to assure a meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various credit terms available to him and avoid the uninformed use of credit”). 6 The Government offers an alternative example. Assume that the agreement is similar to the one at issue here, with a specified maxi mum level to which the interest rate can be increased if the cardholder defaults. If default occurs but the issuer raises the rate above the contractual maximum, notice must be given prior to the effective date because the issuer actually changed the term of the contract initially specifying the maximum rate possible. See Brief for United States as Amicus Curiae 14–15. 12 CHASE BANK USA, N. A. v. MCCOY Opinion of the Court ple, when an increase may occur under the creditor’s contract reservation right to increase the periodic rate)”). In short, Regulation Z is unclear with respect to the crucial interpretive question: whether the interest-rate increase at issue in this case constitutes a “change in terms” requiring notice. We need not decide which party’s interpretation is more persuasive, however; both are plausible, and the text alone does not permit a more de finitive reading. Accordingly, we find Regulation Z to be ambiguous as to the question presented, and must there fore look to the Board’s own interpretation of the regula tion for guidance in deciding this case. See Coeur Alaska, Inc. v. Southeast Alaska Conservation Council, 557 U. S. ___, ___ (2009) (slip op., at 14) (stating that when an agency’s regulations construing a statute “are ambiguous . . . we next turn to the agencies’ subsequent interpreta tion of those regulations” for guidance); Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 560 (1980) (stating that when the question presented “is not governed by clear expression in the . . . regulation . . . it is appropriate to defer to the Federal Reserve Board and staff in determin ing what resolution of that issue” is appropriate). B The Board has made clear in the amicus brief it has submitted to this Court that, in the Board’s view, Chase was not required to give McCoy notice of the interest rate increase under the version of Regulation Z applicable at the time. Under Auer v. Robbins, 519 U.S. 452 (1997), we defer to an agency’s interpretation of its own regulation, advanced in a legal brief, unless that interpretation is “plainly erroneous or inconsistent with the regulation.” Id., at 461 (internal quotation marks omitted). Because the interpretation the Board presents in its brief is consis tent with the regulatory text, we need look no further in Cite as: 562 U. S. ____ (2011) 13 Opinion of the Court deciding this case.7 In its brief to this Court, the Board explains that the Ninth Circuit “erred in concluding that, at the time of the transactions at issue in this case, Regulation Z required credit card issuers to provide a change-in-terms notice be fore implementing a contractual default-rate provision.” See Brief for United States as Amicus Curiae 11; see also ibid. (stating that when a term of an agreement author ized the credit provider “to increase a consumer’s interest rate if the consumer failed to make timely payments . . . any resulting rate increase did not represent a ‘change in terms,’ but rather the implementation of terms already set forth in the initial disclosure statement”); id., at 15–16 (stating that “[w]hen a cardholder agreement identifies a contingency that triggers a rate increase, and the maxi mum possible rate that the issuer may charge if that contingency occurs,” then “no change-in-terms notice is required” under Regulation Z).8 Under the principles set forth in Auer, we give deference to this interpretation. In Auer we deferred to the Secretary of Labor’s interpre tation of his own regulation, presented in an amicus brief submitted by the agency at our invitation. 519 U. S., at —————— 7 We note that, in reaching its decision, the Ninth Circuit did not have the benefit of briefing from the Board. The Ninth Circuit appar ently did not solicit the views of the Board in the proceedings below, see Brief for Petitioner 16, and the First Circuit did not solicit the Board’s views in Shaner v. Chase Bank USA, N. A., 587 F.3d 488 (2009), until after the Ninth Circuit issued its opinion in this case, see Order in No. 09–1157 (CA1, Aug. 4, 2009). 8 This is consistent with the view the Board advanced in its amicus brief to the First Circuit, in which the Board noted that it “has in terpreted the applicable provisions of Regulation Z not to require a pre-effective date change-in-terms notice for an increase in annual per centage rate when the contingency that will trigger a rate increase and the specific consequences for the consumer’s rate are set forth in the initial card member agreement.” App. to Brief for United States as Amicus Curiae 2a. 14 CHASE BANK USA, N. A. v. MCCOY Opinion of the Court 461–462. Responding to the petitioners’ objection that the agency’s interpretation came in a legal brief, we held that this fact did not, “in the circumstances of this case, make it unworthy of deference.” Id., at 462. We observed that “[t]he Secretary’s position is in no sense a ‘post hoc ration alizatio[n]’ advanced by an agency seeking to defend past agency action against attack.” Ibid. (quoting Bowen v. Georgetown Univ. Hospital, 488 U.S. 204, 212 (1988)). We added: “There is simply no reason to suspect that the interpretation does not reflect the agency’s fair and con sidered judgment on the matter in question.” Auer, 519 U.S., at 462. The brief submitted by the Board in the present case, at our invitation, is no different. As in Auer, there is no reason to believe that the interpretation advanced by the Board is a “post hoc rationalization” taken as a litigation position. The Board is not a party to this case. And as is evident from our discussion of Regulation Z itself, see Part II–A, supra, the Board’s interpretation is neither “plainly erroneous” nor “inconsistent with” the indeterminate text of the regulation. In short, there is no reason to suspect that the position the Board takes in its amicus brief re flects anything other than the agency’s fair and considered judgment as to what the regulation required at the time this dispute arose. McCoy may well be correct in asserting that it is better policy to oblige credit-card issuers to give advance notice of a rate increase; after all, both Congress and the Board have recently indicated that such a requirement is war ranted. See Credit CARD Act, §101(a)(1), 123 Stat. 1735– 1736; 12 CFR §226.9(g) (2009). That Congress and the Board may currently hold such views does not mean, however, that deference is not warranted to the Board’s different understanding of what the pre-2009 version of Regulation Z required. To the contrary, the interpretation the Board advances in its amicus brief is entirely consis Cite as: 562 U. S. ____ (2011) 15 Opinion of the Court tent with its past views. The 2004 notice of rulemaking and the 2007 proposed amendments to Regulation Z make clear that, prior to 2009, the Board’s fair and considered judgment was that “no change-in-terms notice is required if the creditor specifies in advance the circumstances under which an increase . . . will occur,” 69 Fed. Reg. 70931, and “immediate application of penalty pricing upon the occurrence of certain events specified in the contract” was permissible, 72 Fed. Reg. 33012. Under Auer, therefore, it is clear that deference to the interpretation in the Board’s amicus brief is warranted. The cases McCoy cites in which we declined to apply Auer do not suggest that deference is unwarranted here. In Gonzales v. Oregon, 546 U.S. 243 (2006), we declined to defer because—in sharp contrast to the present case— the regulation in question did “little more than restate the terms of the statute” pursuant to which the regulation was promulgated. Id., at 257. Accordingly, no deference was warranted to an agency interpretation of what were, in fact, Congress’ words. Ibid. In contrast, at the time of the transactions in this case, TILA itself included no require ments with respect to the disclosure of a change in credit terms. In Christensen v. Harris County, 529 U.S. 576 (2000), we declined to apply Auer deference because the regulation in question was unambiguous, and adopting the agency’s contrary interpretation would “permit the agency, under the guise of interpreting a regulation, to create de facto a new regulation.” 529 U.S., at 588. In light of Regulation Z’s ambiguity, there is no such danger here. And our statement in Christensen that “deference is war ranted only when the language of the regulation is am biguous,” ibid., is perfectly consonant with Auer itself; if the text of a regulation is unambiguous, a conflicting agency interpretation advanced in an amicus brief will necessarily be “plainly erroneous or inconsistent with the regulation” in question. Auer, 519 U.S., at 461 (internal 16 CHASE BANK USA, N. A. v. MCCOY Opinion of the Court quotation marks omitted). Accordingly, under our prece dent deference to the Board’s interpretation of its own regulation, as presented in the agency’s amicus brief, is wholly appropriate. C McCoy further argues that deference to a legal brief is inappropriate because the interpretation of Regulation Z in the Official Staff Commentary commands a different result. To be sure, the Official Staff Commentary promul gated by the Board as an interpretation of Regulation Z may warrant deference as a general matter. See Anderson Bros. Ford v. Valencia, 452 U.S. 205, 219 (1981) (holding that “the Board’s interpretation of its own regulation” should generally “be accepted by the courts”); Milhollin, 444 U.S., at 565 (“Unless demonstrably irrational, Fed eral Reserve Board staff opinions construing [TILA] or Regulation [Z] should be dispositive”). We find, however, that the Commentary at issue here largely replicates the ambiguity present in the regulatory text, and therefore it offers us nothing to which we can defer with respect to the precise interpretive question before us.9 Cf. Smith v. City —————— 9 We are not persuaded by McCoy’s argument that the Board’s own regulations make the Official Staff Commentary “the exclusive source of authorized staff opinion.” Brief for Respondent 36 (emphasis added). In the regulations McCoy cites the Board has indicated only that the central purpose of the Commentary is to present agency interpretations that, if relied upon, provide the basis for invoking the good-faith de fense to liability under TILA. See 15 U.S. C. §1640(f) (precluding liability for “any act done or omitted in good faith in conformity . . . with any interpretation . . . by an official or employee . . . duly author ized by the Board to issue such interpretations . . . under such proce dures as the Board may prescribe”); 12 CFR pt. 226, App. C (2008) (“[O]fficial staff interpretations of this regulation . . . provide the protection afforded under [§1640(f)]”); id., Supp. I, Introduction ¶1, p. 451 (same); 46 Fed. Reg. 50288 (1981) (same). McCoy cites no authority indicating that, in promulgating the Commentary and establishing certain statutory safe harbors, the Board intended to limit its ability to Cite as: 562 U. S. ____ (2011) 17 Opinion of the Court of Jackson, 544 U.S. 228, 248 (2005) (O’Connor, J., con curring in judgment) (noting that deference is not war ranted when “there is no reasoned agency reading of the text to which we might defer”). The Ninth Circuit relied primarily on Comment 9(c)(1)– 3, which states in relevant part that “a notice of change in terms is required, but it may be mailed or delivered as late as the effective date of the change . . . [i]f there is an increased periodic rate or any other finance charge attri butable to the consumer’s delinquency or default.” This exposition of the regulation does not add any clarity to the regulatory text, which expresses the same requirement. See §226.9(c)(1) (2008) (“[I]f a periodic rate or other fi nance charge is increased because of the consumer’s delin quency or default . . . notice shall be given . . . before the effective date of the change”). And like §226.9(c), Com ment 9(c) is entitled “Change in terms.” Accordingly, Chase’s plausible interpretation of §226.9(c)(1) is equally applicable to Comment 9(c)(1)–3: On Chase’s view, be cause the interest-rate increase at issue in this case did not constitute a “change in terms,” the disclosure require ments in the regulation and Commentary simply do not come into play. See supra, at 10–11. Comment 9(c)–1 is also ambiguous, though the most plausible reading supports Chase’s position more than it does McCoy’s. The Comment begins: “No notice of a change in terms need be given if the specific change is set forth initially” in the agreement. We do not find that the Comment’s addition of the modifier “specific” to the word “change” enables us to determine, any more than we could in light of the text of the regulation, see supra, at 12, whether the interest-rate increase at issue in this case was a “change in terms” requiring notice. According to Chase, as long as the agreement explains that delinquency —————— issue authoritative interpretations for other purposes. 18 CHASE BANK USA, N. A. v. MCCOY Opinion of the Court or default might trigger an increased interest rate and states the maximum level to which the rate could be in creased, the “specific change” that ensues upon default has been set forth initially and no additional notice is required before implementation. McCoy argues to the contrary: Under Comment 9(c)–1, any new rate imposed after delin quency or default must be disclosed prior to the effective date, if the particular rate (rather than the maximum rate) was not specifically mentioned in the agreement. On the whole, then, the Official Staff Commentary’s explana tion of Regulation Z does not resolve the uncertainty in the regulatory text, and offers us no reason to disregard the interpretation advanced in the Board’s amicus brief.10 —————— 10 In concluding otherwise, the Ninth Circuit focused on the examples Comment 9(c)–1 provides of changes that, if set forth initially, require no further disclosure when put into effect: “No notice of a change in terms need be given if the specific change is set forth initially, such as: Rate increases under a properly disclosed variable-rate plan, a rate increase that occurs when an employee has been under a preferential rate agreement and terminates employment, or an increase that occurs when the consumer has been under an agreement to maintain a certain balance in a savings account in order to keep a particular rate and the account balance falls below the specified minimum.” The Ninth Circuit concluded that, in contrast to each of these three examples, “the increase here occurs at Chase’s discretion.” 559 F.3d 963, 966 (2009). That is, once the triggering event—McCoy’s default— occurred, Chase had the latitude to increase the interest rate as it saw fit (up to the limit specified in the Pricing Schedule). We are not persuaded by the Ninth Circuit’s reasoning. Certainly, under a “variable-rate” plan the interest rate fluctuates according to an external variable easily discernable by the cardholder (like the Federal Prime rate), and the issuer has no discretion. See ibid. But the Com ment’s second and third examples do not appear to be significantly different from this case: The agreement contains a preset rate, but it also provides that, on the occurrence of a predefined event (terminating employment or a low account balance), the rate will increase. Moreover, Comment 9(c)–1 further states that notice is needed “if the contract allows the creditor to increase the rate at its discretion but does not include specific terms for an increase”—for example, “when an Cite as: 562 U. S. ____ (2011) 19 Opinion of the Court McCoy further contends that our reliance here on an agency interpretation presented outside the four corners of the Official Staff Commentary will require future liti gants, as well as the Board, to expend time and resources “to comb through . . . correspondence, publications, and the agency’s website to determine the agency’s position.” Brief for Respondent 37–38. We are not convinced. McCoy may be correct that the Board established the Official Staff Commentary so as to centralize its opinion making process and avoid “overburdening the industry with excessive detail and multiple research sources.” 46 Fed. Reg. 50288. But his suggestion that, if we accord deference to an amicus brief, all other “unofficial” sources will be fair game is of no moment. Today we decide only that the amicus brief submitted by the Board is entitled to deference in light of “the circumstances of this case.” Auer, 519 U.S., at 462. Accordingly, we conclude that, at the time of the trans actions at issue in this case, Regulation Z did not require Chase to provide McCoy with a change-in-terms notice before it implemented the Agreement term allowing it to raise his interest rate following delinquency or default. * * * For the foregoing reasons, the judgment of the United States Court of Appeals for the Ninth Circuit is reversed, and the case is remanded for further proceedings consis tent with this opinion. It is so ordered. —————— increase may occur under the creditor’s contract reservation right to increase the periodic rate.” It would seem that the narrower latitude Chase had under the Agreement to set the precise new rate within a specified range after McCoy defaulted is not the kind of “discretion” the last example of Comment 9(c)–1 contemplates. In short, analogizing to the Comment’s examples suggests that Chase’s action in setting a new rate was most likely a “specific change” that the Agreement itself contemplated, and subsequent disclosure was not clearly required	s applicable to this case, Regulation Z—promulgated by the Board of Governors of the Federal Reserve System (Board) pursuant to its authority under the Truth in Lending ct (TIL), 15 U.S. C. et seq.—requires that issuers of credit cards provide card holders with an “[i]nitial disclosure statement” specifying, inter alia, “each periodic rate” associated with the account. (a)(2) (2008). The regulation also imposes “[s]ubsequent disclosure requirements,” including notice to cardholders “[w]henever any term required to be disclosed under is changed.” This case presents the question whether Regulation Z requires an issuer to notify a cardholder of an interest-rate increase instituted pursuant to a provision of the cardholder agreement giv ing the issuer discretion to increase the rate, up to a stated maximum, in the event of the cardholder’s delin quency or default. We conclude that the version of Reg- ulation Z applicable in this case does not require such notice. 2 CHSE BNK US, N. v. MCCOY Opinion of the Court I Congress passed TIL to promote consumers’ “informed use of credit” by requiring “meaningful disclosure of credit terms,” 15 U.S. C. (a), and granted the Board the authority to issue regulations to achieve TIL’s purposes, Pursuant to this authority, the Board promul gated Regulation Z, which requires credit card issuers to disclose certain information to consumers.1 Two provi sions of Regulation Z are at issue in this case. The first, explains what information credit card issuers are obliged to provide to cardholders in the “[i]nitial disclosure statement,” including “each periodic rate that may be used to compute the finance charge.” (a)(2). The second, imposes upon issuers certain “[s]ubsequent disclosure requirements,” including a requirement to provide notice “[w]henever any term required to be disclosed under is changed.” s a general matter, notice of a change in terms has to be provided 15 days in advance of the effec tive date of the change. When “a periodic rate or other finance charge is increased because of the con sumer’s delinquency or default,” however, notice only need be given “before the effective date of the change.” Regulation Z also explains that no notice is required under when the change in terms “results from the consumer’s default or delinquency (other than an increase in the periodic rate or other finance charge).” (c)(2). The official interpretation of Regulation Z (Official Staff Commentary or Commentary) promulgated by the Board —————— 1 s discussed more fully below, see infra, at 4–5, in the Board amended Regulation Z, such that the provisions discussed in this opinion are no longer in effect. However, because the pre- provi sions are the ones applicable to the case before us, we will refer to them in the present tense. Cite as: 562 U. S. (2011) 3 Opinion of the Court explains these requirements further: Section 226.9(c)(1)’s notice-of-change requirement does not apply “if the spe cific change is set forth initially, such as an increase that occurs when the consumer has been under an agree ment to maintain a certain balance in a savings account in order to keep a particular rate and the account balance falls below the specified minimum.” 12 CFR pt. 226, Supp. I, Comment 9(c)–1, p. 506 (2008) (hereinafter Comment 9(c)–1). On the other hand, the Commentary explains, “notice must be given if the contract allows the creditor to increase the rate at its discretion but does not include specific terms for an increase (for example, when an in crease may occur under the creditor’s contract reservation right to increase the periodic rate).” s to the timing requirements, the Commentary states: “[] notice of change in terms is required, but it may be mailed or deliv ered as late as the effective date of the change [i]f there is an increased periodic rate or any other finance charge attributable to the consumer’s delinquency or default.” Comment 9(c)(1)–3, at 507 (hereinafter Comment 9(c)(1)–3). t least as early as 2004, the Board began considering revisions to Regulation Z. The new regulations the Board eventually issued do not apply to the present case, but the details of their promulgation provide useful background in considering the parties’ arguments with respect to the version of Regulation Z we address here. In 2004 the Board issued an advance notice of proposed rulemaking announcing its intent to consider revisions. 69 Fed. Reg. 70925 (2004). In so doing, the Board described how it understood the notice requirements to function at that time: “[]dvance notice is not required in all cases. For ex ample, if the interest rate or other finance charge in creases due to a consumer’s default or delinquency, 4 CHSE BNK US, N. v. MCCOY Opinion of the Court notice is required, but need not be given in advance. 12 CFR 226.9(c)(1); comment 9(c)(1)–3. nd no change-in-terms notice is required if the creditor specifies in advance the circumstances under which an increase to the finance charge or an annual fee will occur. Comment 9(c)–1. For example, some credit card account agreements permit the card issuer to in crease the interest rate if the consumer pays late Under Regulation Z, because the circumstances are specified in advance in the account agreement, the creditor need not provide a change-in-terms notice 15 days in advance of the increase; the new rate will ap pear on the periodic statement for the cycle in which the increase occurs.” at 70931–70932. The Board asked for public comment on whether these “existing disclosure rules” were “adequate to enable con sumers to make timely decisions about how to manage their accounts.” Subsequently, in 2007, the Board published proposed amendments to Regulation Z and the Commentary. 72 Fed. Reg. 32948. One amendment would have required 45 days’ advance written notice when “(i) [a] rate is increased due to the consumer’s delinquency or default; or (ii) [a] rate is increased as a penalty for one or more events spec ified in the account agreement, such as making a late payment or obtaining an extension of credit that exceeds the credit limit.” (proposed 12 CFR (g)). The Board explained that, under the amend ments, “creditors would no longer be permitted to provide for the immediate application of penalty pricing upon the occurrence of certain events specified in the contract.” 72 Fed. Reg. 33012. In January the Board promulgated a final rule implementing many of the proposed changes, scheduled to be effective July 1, 2010. Most sali Cite as: 562 U. S. (2011) 5 Opinion of the Court ently, the Board included a new provision, (g), which requires 45 days’ advance notice of increases in rates due to cardholder delinquency or default, or as a penalty, including penalties for “events specified in the account agreement, such as making a late payment” 12 CFR (g)(1)(2010). In May Congress en acted the Credit Card ccountability Responsibility and Disclosure ct (Credit CRD ct or ct), The ct amended TIL, in relevant part, to require 45 days’ advance notice of most increases in credit card an nual percentage rates. 15 U.S. C. (2006 ed., Supp. III). Because the Credit CRD ct’s notice re quirements with respect to interest-rate increases largely mirror the requirements in the new version of the regu- lation, the Board changed the effective date of those requirements to ugust 20, to coincide with the statutory schedule. See –36079. The transactions giving rise to the dispute at issue in this case, however, arose prior to enactment of the ct and the promulgation of the new regulatory provisions. B Respondent James McCoy brought this action in the Superior Court of Orange County, California on behalf of himself and others similarly situated against petitioner Chase Bank US, N.; Chase removed the action to the United States District Court for the Central District of California under 28 U.S. C. t the time of the transactions at issue, McCoy was the holder of a credit card issued by Chase. The cardholder agreement between the parties (greement) provides, in relevant part, that McCoy is eligible for “Preferred rates,” but that to keep such rates he has to meet certain conditions, including making “at least the required minimum payments when due on [his] ccount and on all other loans or accounts with [Chase] and [his] other creditors.” Brief for Respon 6 CHSE BNK US, N. v. MCCOY Opinion of the Court dent 8, n. 2; see also (Cudahy, J., dissenting). If any of the conditions in the greement are not met, Chase reserves the right to “change [McCoy’s] interest rate and impose a Non- Preferred rate up to the maximum Non-Preferred rate described in the Pricing Schedule” and to apply any changes “to existing as well as new balances effective with the billing cycle ending on the review date.” Brief for Respondent 8, n. 2. McCoy’s complaint alleges that Chase increased his interest rate due to his delinquency or default, and applied that increase retroactively. McCoy asserts that the rate increase violates Regulation Z because, pursuant to the greement, Chase did not notify him of the increase until after it had taken effect.2 The District Court dismissed McCoy’s complaint, holding that because the increase did not constitute a “change in terms” as contemplated by (c), Chase was not required to notify him of the increase before implementing it. See pp. to Pet. for Cert. 37a–47a. divided panel of the United States Court of ppeals for the Ninth Circuit reversed in relevant part, holding that Regulation Z requires issuers to provide notice of an interest-rate increase prior to its effective date. See 559 F.3d, at 969. Concluding that the text of Regulation Z is ambiguous and that the agency commentary accompany ing the 2004 request for comments and the 2007 proposed amendments favors neither party’s interpretation, the court relied primarily on the Official Staff Commentary; in particular, the court noted that Comment 9(c)–1 requires no notice of a change in terms if the “specific change” at —————— 2 McCoy also asserted various state-law claims that are not before us. We note that McCoy’s complaint provides little detail regarding the transactions at issue in this case. The parties, however, are in agree ment as to the essential facts alleged. Cite as: 562 U. S. (2011) 7 Opinion of the Court issue is set forth in the initial agreement. See at 965– 967. The court found, however, that because the gree ment vests Chase with discretion to impose any Non- Preferred rate it chooses (up to the specified maximum) upon McCoy’s default, the greement “provides McCoy with no basis for predicting in advance what retroactive interest rate Chase will choose to charge him if he de faults.” ccordingly, the court held that be cause the greement does not alert McCoy to the “specific change” that will occur if he defaults, Chase was obliged to give notice of that change prior to its effective date. Relying primarily on the 2004 notice of proposed rulemak ing and the 2007 proposed amendments, the dissenting judge concluded that Regulation Z does not require notice of an interest-rate increase in the circumstances of this case. See at 972–979 (opinion of Cudahy, J.). fter the Ninth Circuit’s ruling, the United States Court of ppeals for the First Circuit decided the same question in Chase’s favor. See The First Circuit relied in part on an amicus brief submitted by the Board at the court’s request, in which the agency advanced the same interpre tation of Regulation Z that it now does before this Court. We granted certiorari to resolve this division in authority.3 561 U. S. (2010). II In order to decide this case, we must determine whether an interest-rate increase constitutes a “change in terms” under Regulation Z, when the change is made pursuant to a provision in the cardholder agreement allowing the —————— 3 The United States Court of ppeals for the Seventh Circuit has also rejected the reasoning of the Ninth Circuit, though on a different question than the one presented in this case. See (disagreeing with the Ninth Circuit’s interpretation of Regulation Z). 8 CHSE BNK US, N. v. MCCOY Opinion of the Court issuer to increase the rate, up to a stated maximum, in the event of the cardholder’s delinquency or default. ccord ingly, this case calls upon us to determine the meaning of a regulation promulgated by the Board under its statutory authority. The parties dispute the proper interpretation of the regulation itself, as well as whether we should accord deference to the Board’s interpretation of its regulation. s explained below, we conclude that the text of the regu lation is ambiguous, and that deference is warranted to the interpretation of that text advanced by the Board in its amicus brief. Our analysis begins with the text of Regulation Z in effect at the time this dispute arose. First, requires an “[i]nitial disclosure statement”: “The creditor shall disclose to the consumer, in ter minology consistent with that to be used on the peri odic statement, each of the following items, to the extent applicable: “(a) Finance charge. The circumstances under which a finance charge will be imposed and an expla nation of how it will be determined, as follows: “(2) disclosure of each periodic rate that may be used to compute the finance charge, the range of bal ances to which it is applicable, and the corresponding annual percentage rate. When different periodic rates apply to different types of transactions, the types of transactions to which the periodic rates apply shall also be disclosed.” (Footnotes omitted.) Second, (c) requires certain “[s]ubsequent disclosure requirements”: “Change in terms—(1) Written notice required. Whenever any term required to be disclosed under Cite as: 562 U. S. (2011) 9 Opinion of the Court is changed or the required minimum periodic payment is increased, the creditor shall mail or de liver written notice of the change to each consumer who may be affected. The notice shall be mailed or delivered at least 15 days prior to the effective date of the change. The 15-day timing requirement does not apply if the change has been agreed to by the con sumer, or if a periodic rate or other finance charge is increased because of the consumer’s delinquency or default; the notice shall be given, however, before the effective date of the change. “(2) Notice not required. No notice under this sec tion is required when the change results from the consumer’s default or delinquency (other than an increase in the periodic rate or other finance charge).” The question is whether the increase in McCoy’s inter est rate constitutes a change to a “term required to be disclosed under” requiring a subsequent disclosure under One of the initial terms that must be disclosed under is “each periodic rate that may be used to compute the finance charge and the corre sponding annual percentage rate.” (a)(2). McCoy argues that, because an increase in the interest rate in creases the “periodic rate” applicable to his account, such an increase constitutes a change in terms within the meaning of s further support, McCoy points to two provisions in (c): first, that notice of an in crease in the interest rate must be provided “before the effective date of the change” when the increase is due to “the consumer’s delinquency or default,” (c)(1); and second, that no notice is required of a change resulting “from the consumer’s default or delinquency (other than an increase in the periodic rate or other finance charge),” (c)(2). ccordingly, because (c) includes interest-rate increases due to delinquency or default, 10 CHSE BNK US, N. v. MCCOY Opinion of the Court McCoy argues that the plain text of the regulation indi cates that a change in the periodic rate due to such default is a “change in terms” requiring notice under We recognize that McCoy’s argument has some force; read in isolation, the language quoted above certainly suggests that credit card issuers must provide notice of an interest-rate increase imposed pursuant to cardholder delinquency or default. But McCoy’s analysis begs the key question: whether the increase actually changed a “term” of the greement that was “required to be disclosed under” If not, (c)’s subsequent notice requirement with respect to a “change in terms” does not apply. Chase argues precisely this: The increase did not change a term in the greement, but merely implemented one that had been initially disclosed, as required. This interpretation, though not commanded by the text of the regulation, is reasonable. Section 226.6(a)(2) requires initial disclosure of “each periodic rate that may be used to compute the finance charge.” The greement itself discloses both the initial rate (Preferred rate) and the maximum rate to be imposed in the event of default (Non-Preferred rate). See Brief for Respondent 8, n. 2; Brief for Petitioner 13–14.4 ccordingly, it is plausible to understand the greement to initially disclose “each periodic rate” to be applied to the account, and Chase arguably did not “change” those rates as a result of McCoy’s default. Instead, Chase merely implemented the previously disclosed term specifying the Non-Preferred rate.5 —————— 4 The Pricing Schedule referred to in the greement is not contained in the case record, nor are its contents apparent from the parties’ briefs, but neither side disputes that it specified a maximum Non-Preferred rate applicable to the greement. 5 We are not persuaded by McCoy’s argument that, although Chase did not change a “contract term” when it raised his interest rate pursu ant to the terms of the greement, it changed a “credit term,” thereby triggering (c)’s notice requirement. The relevant text of Regula Cite as: 562 U. S. (2011) 11 Opinion of the Court This reading still leaves the question why (c)(1) refers to interest-rate increases resulting from delin quency or default if such increases do not constitute a “change in terms.” One reasonable explanation Chase offers is that (c)(1) refers to interest-rate increases that were not specifically outlined in the agreement’s initial terms (unlike those in the present greement). For example, credit card agreements routinely include a “res ervation of rights” provision giving the issuer discretion to change the terms of the contract, often as a means of responding to events that raise doubts about the card holder’s creditworthiness. n issuer may exercise this general contract-modification authority and raise the interest rate applicable to the account to address any heightened risk. See Brief for Petitioner 6. In such a case, (c)(1) is best read to require that notice must be given prior to the effective date of the increase, because the unilateral increase instituted by the issuer actually changed a term—the interest rate—in a manner not spe cifically contemplated by the agreement.6 See Comment 9(c)–1 (providing that notice is required if the agreement “does not include specific terms for an increase (for exam —————— tion Z does not refer to, let alone distinguish between, “contract terms” and “credit terms,” and McCoy’s repeated citations to TIL’s broad policy statement do not convince us that such a distinction is war ranted. See 15 U.S. C. (a) (“It is the purpose of this subchapter to assure a meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various credit terms available to him and avoid the uninformed use of credit”). 6 The Government offers an alternative example. ssume that the agreement is similar to the one at issue here, with a specified maxi mum level to which the interest rate can be increased if the cardholder defaults. If default occurs but the issuer raises the rate above the contractual maximum, notice must be given prior to the effective date because the issuer actually changed the term of the contract initially specifying the maximum rate possible. See Brief for United States as micus Curiae 14–15. 12 CHSE BNK US, N. v. MCCOY Opinion of the Court ple, when an increase may occur under the creditor’s contract reservation right to increase the periodic rate)”). In short, Regulation Z is unclear with respect to the crucial interpretive question: whether the interest-rate increase at issue in this case constitutes a “change in terms” requiring notice. We need not decide which party’s interpretation is more persuasive, however; both are plausible, and the text alone does not permit a more de finitive reading. ccordingly, we find Regulation Z to be ambiguous as to the question presented, and must there fore look to the Board’s own interpretation of the regula tion for guidance in deciding this case. See Coeur laska, Inc. v. Southeast laska Conservation Council, 557 U. S. (slip op., at 14) (stating that when an agency’s regulations construing a statute “are ambiguous we next turn to the agencies’ subsequent interpreta tion of those regulations” for guidance); Ford Motor Credit (stating that when the question presented “is not governed by clear expression in the regulation it is appropriate to defer to the Federal Reserve Board and staff in determin ing what resolution of that issue” is appropriate). B The Board has made clear in the amicus brief it has submitted to this Court that, in the Board’s view, Chase was not required to give McCoy notice of the interest rate increase under the version of Regulation Z applicable at the time. Under we defer to an agency’s interpretation of its own regulation, advanced in a legal brief, unless that interpretation is “plainly erroneous or inconsistent with the regulation.” Because the interpretation the Board presents in its brief is consis tent with the regulatory text, we need look no further in Cite as: 562 U. S. (2011) 13 Opinion of the Court deciding this case.7 In its brief to this Court, the Board explains that the Ninth Circuit “erred in concluding that, at the time of the transactions at issue in this case, Regulation Z required credit card issuers to provide a change-in-terms notice be fore implementing a contractual default-rate provision.” See Brief for United States as micus Curiae 11; see also (stating that when a term of an agreement author ized the credit provider “to increase a consumer’s interest rate if the consumer failed to make timely payments any resulting rate increase did not represent a ‘change in terms,’ but rather the implementation of terms already set forth in the initial disclosure statement”); at 15–16 (stating that “[w]hen a cardholder agreement identifies a contingency that triggers a rate increase, and the maxi mum possible rate that the issuer may charge if that contingency occurs,” then “no change-in-terms notice is required” under Regulation Z).8 Under the principles set forth in uer, we give deference to this interpretation. In uer we deferred to the Secretary of Labor’s interpre tation of his own regulation, presented in an amicus brief submitted by the agency at our invitation. 519 U. S., at —————— 7 We note that, in reaching its decision, the Ninth Circuit did not have the benefit of briefing from the Board. The Ninth Circuit appar ently did not solicit the views of the Board in the proceedings below, see Brief for Petitioner 16, and the First Circuit did not solicit the Board’s views in until after the Ninth Circuit issued its opinion in this case, see Order in No. 09–1157 8 This is consistent with the view the Board advanced in its amicus brief to the First Circuit, in which the Board noted that it “has in terpreted the applicable provisions of Regulation Z not to require a pre-effective date change-in-terms notice for an increase in annual per centage rate when the contingency that will trigger a rate increase and the specific consequences for the consumer’s rate are set forth in the initial card member agreement.” pp. to Brief for United States as micus Curiae 2a. 14 CHSE BNK US, N. v. MCCOY Opinion of the Court 461–462. Responding to the petitioners’ objection that the agency’s interpretation came in a legal brief, we held that this fact did not, “in the circumstances of this case, make it unworthy of deference.” We observed that “[t]he Secretary’s position is in no sense a ‘post hoc ration alizatio[n]’ advanced by an agency seeking to defend past agency action against attack.” ). We added: “There is simply no reason to suspect that the interpretation does not reflect the agency’s fair and con sidered judgment on the matter in question.” uer, 519 U.S., The brief submitted by the Board in the present case, at our invitation, is no different. s in uer, there is no reason to believe that the interpretation advanced by the Board is a “post hoc rationalization” taken as a litigation position. The Board is not a party to this case. nd as is evident from our discussion of Regulation Z itself, see Part II–, the Board’s interpretation is neither “plainly erroneous” nor “inconsistent with” the indeterminate text of the regulation. In short, there is no reason to suspect that the position the Board takes in its amicus brief re flects anything other than the agency’s fair and considered judgment as to what the regulation required at the time this dispute arose. McCoy may well be correct in asserting that it is better policy to oblige credit-card issuers to give advance notice of a rate increase; after all, both Congress and the Board have recently indicated that such a requirement is war ranted. See Credit CRD ct, – 1736; 12 CFR (g) That Congress and the Board may currently hold such views does not mean, however, that deference is not warranted to the Board’s different understanding of what the pre- version of Regulation Z required. To the contrary, the interpretation the Board advances in its amicus brief is entirely consis Cite as: 562 U. S. (2011) 15 Opinion of the Court tent with its past views. The 2004 notice of rulemaking and the 2007 proposed amendments to Regulation Z make clear that, prior to the Board’s fair and considered judgment was that “no change-in-terms notice is required if the creditor specifies in advance the circumstances under which an increase will occur,” 69 Fed. Reg. 70931, and “immediate application of penalty pricing upon the occurrence of certain events specified in the contract” was permissible, Under uer, therefore, it is clear that deference to the interpretation in the Board’s amicus brief is warranted. The cases McCoy cites in which we declined to apply uer do not suggest that deference is unwarranted here. In we declined to defer because—in sharp contrast to the present case— the regulation in question did “little more than restate the terms of the statute” pursuant to which the regulation was promulgated. ccordingly, no deference was warranted to an agency interpretation of what were, in fact, Congress’ words. In contrast, at the time of the transactions in this case, TIL itself included no require ments with respect to the disclosure of a change in credit terms. In (2000), we declined to apply uer deference because the regulation in question was unambiguous, and adopting the agency’s contrary interpretation would “permit the agency, under the guise of interpreting a regulation, to create de facto a new regulation.” In light of Regulation Z’s ambiguity, there is no such danger here. nd our statement in Christensen that “deference is war ranted only when the language of the regulation is am biguous,” ib is perfectly consonant with uer itself; if the text of a regulation is unambiguous, a conflicting agency interpretation advanced in an amicus brief will necessarily be “plainly erroneous or inconsistent with the regulation” in question. uer, 519 U.S., (internal 16 CHSE BNK US, N. v. MCCOY Opinion of the Court quotation marks omitted). ccordingly, under our prece dent deference to the Board’s interpretation of its own regulation, as presented in the agency’s amicus brief, is wholly appropriate. C McCoy further argues that deference to a legal brief is inappropriate because the interpretation of Regulation Z in the Official Staff Commentary commands a different result. To be sure, the Official Staff Commentary promul gated by the Board as an interpretation of Regulation Z may warrant deference as a general matter. See nderson Bros. (holding that “the Board’s interpretation of its own regulation” should generally “be accepted by the courts”); Milhollin, (“Unless demonstrably irrational, Fed eral Reserve Board staff opinions construing [TIL] or Regulation [Z] should be dispositive”). We find, however, that the Commentary at issue here largely replicates the ambiguity present in the regulatory text, and therefore it offers us nothing to which we can defer with respect to the precise interpretive question before us.9 Cf. Smith v. City —————— 9 We are not persuaded by McCoy’s argument that the Board’s own regulations make the Official Staff Commentary “the exclusive source of authorized staff opinion.” Brief for Respondent 36 (emphasis added). In the regulations McCoy cites the Board has indicated only that the central purpose of the Commentary is to present agency interpretations that, if relied upon, provide the basis for invoking the good-faith de fense to liability under TIL. See 15 U.S. C. (precluding liability for “any act done or omitted in good faith in conformity with any interpretation by an official or employee duly author ized by the Board to issue such interpretations under such proce dures as the Board may prescribe”); 12 CFR pt. 226, pp. C (2008) (“[O]fficial staff interpretations of this regulation provide the protection afforded under []”); Supp. I, Introduction ¶1, p. 451 ; McCoy cites no authority indicating that, in promulgating the Commentary and establishing certain statutory safe harbors, the Board intended to limit its ability to Cite as: 562 U. S. (2011) 17 Opinion of the Court of Jackson, (O’Connor, J., con curring in judgment) (noting that deference is not war ranted when “there is no reasoned agency reading of the text to which we might defer”). The Ninth Circuit relied primarily on Comment 9(c)(1)– 3, which states in relevant part that “a notice of change in terms is required, but it may be mailed or delivered as late as the effective date of the change [i]f there is an increased periodic rate or any other finance charge attri butable to the consumer’s delinquency or default.” This exposition of the regulation does not add any clarity to the regulatory text, which expresses the same requirement. See (c)(1) (2008) (“[I]f a periodic rate or other fi nance charge is increased because of the consumer’s delin quency or default notice shall be given before the effective date of the change”). nd like (c), Com ment 9(c) is entitled “Change in terms.” ccordingly, Chase’s plausible interpretation of (c)(1) is equally applicable to Comment 9(c)(1)–3: On Chase’s view, be cause the interest-rate increase at issue in this case did not constitute a “change in terms,” the disclosure require ments in the regulation and Commentary simply do not come into play. See at 10–11. Comment 9(c)–1 is also ambiguous, though the most plausible reading supports Chase’s position more than it does McCoy’s. The Comment begins: “No notice of a change in terms need be given if the specific change is set forth initially” in the agreement. We do not find that the Comment’s addition of the modifier “specific” to the word “change” enables us to determine, any more than we could in light of the text of the regulation, see whether the interest-rate increase at issue in this case was a “change in terms” requiring notice. ccording to Chase, as long as the agreement explains that delinquency —————— issue authoritative interpretations for other purposes. 18 CHSE BNK US, N. v. MCCOY Opinion of the Court or default might trigger an increased interest rate and states the maximum level to which the rate could be in creased, the “specific change” that ensues upon default has been set forth initially and no additional notice is required before implementation. McCoy argues to the contrary: Under Comment 9(c)–1, any new rate imposed after delin quency or default must be disclosed prior to the effective date, if the particular rate (rather than the maximum rate) was not specifically mentioned in the agreement. On the whole, then, the Official Staff Commentary’s explana tion of Regulation Z does not resolve the uncertainty in the regulatory text, and offers us no reason to disregard the interpretation advanced in the Board’s amicus brief.10 —————— 10 In concluding otherwise, the Ninth Circuit focused on the examples Comment 9(c)–1 provides of changes that, if set forth initially, require no further disclosure when put into effect: “No notice of a change in terms need be given if the specific change is set forth initially, such as: Rate increases under a properly disclosed variable-rate plan, a rate increase that occurs when an employee has been under a preferential rate agreement and terminates employment, or an increase that occurs when the consumer has been under an agreement to maintain a certain balance in a savings account in order to keep a particular rate and the account balance falls below the specified minimum.” The Ninth Circuit concluded that, in contrast to each of these three examples, “the increase here occurs at Chase’s discretion.” 559 F.3d 963, 966 That is, once the triggering event—McCoy’s default— occurred, Chase had the latitude to increase the interest rate as it saw fit (up to the limit specified in the Pricing Schedule). We are not persuaded by the Ninth Circuit’s reasoning. Certainly, under a “variable-rate” plan the interest rate fluctuates according to an external variable easily discernable by the cardholder (like the Federal Prime rate), and the issuer has no discretion. See But the Com ment’s second and third examples do not appear to be significantly different from this case: The agreement contains a preset rate, but it also provides that, on the occurrence of a predefined event (terminating employment or a low account balance), the rate will increase. Moreover, Comment 9(c)–1 further states that notice is needed “if the contract allows the creditor to increase the rate at its discretion but does not include specific terms for an increase”—for example, “when an Cite as: 562 U. S. (2011) 19 Opinion of the Court McCoy further contends that our reliance here on an agency interpretation presented outside the four corners of the Official Staff Commentary will require future liti gants, as well as the Board, to expend time and resources “to comb through correspondence, publications, and the agency’s website to determine the agency’s position.” Brief for Respondent 37–38. We are not convinced. McCoy may be correct that the Board established the Official Staff Commentary so as to centralize its opinion making process and avoid “overburdening the industry with excessive detail and multiple research sources.” 46 Fed. Reg. 50288. But his suggestion that, if we accord deference to an amicus brief, all other “unofficial” sources will be fair game is of no moment. Today we decide only that the amicus brief submitted by the Board is entitled to deference in light of “the circumstances of this case.” uer, 519 U.S., ccordingly, we conclude that, at the time of the trans actions at issue in this case, Regulation Z did not require Chase to provide McCoy with a change-in-terms notice before it implemented the greement term allowing it to raise his interest rate following delinquency or default. * * * For the foregoing reasons, the judgment of the United States Court of ppeals for the Ninth Circuit is reversed, and the case is remanded for further proceedings consis tent with this opinion. It is so ordered. —————— increase may occur under the creditor’s contract reservation right to increase the periodic rate.” It would seem that the narrower latitude Chase had under the greement to set the precise new rate within a specified range after McCoy defaulted is not the kind of “discretion” the last example of Comment 9(c)–1 contemplates. In short, analogizing to the Comment’s examples suggests that Chase’s action in setting a new rate was most likely a “specific change” that the greement itself contemplated, and subsequent disclosure was not clearly required	2,086
Justice Ginsburg	majority	false	McQuiggin v. Perkins	2013-05-28	null	https://www.courtlistener.com/opinion/872995/mcquiggin-v-perkins/	https://www.courtlistener.com/api/rest/v3/clusters/872995/	2,013	2012-048	2	5	4	This case concerns the “actual innocence” gateway to federal habeas review applied in Schlup v. Delo, 513 U.S. 298 (1995), and further explained in House v. Bell, 547 U.S. 518 (2006). In those cases, a convincing showing of actual innocence enabled habeas petitioners to overcome a procedural bar to consideration of the merits of their constitutional claims. Here, the question arises in the context of 28 U.S. C. §2244(d)(1), the statute of limitations on federal habeas petitions prescribed in the Antiterrorism and Effective Death Penalty Act of 1996. Specifically, if the petitioner does not file her federal habeas peti- tion, at the latest, within one year of “the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence,” §2244(d)(1)(D), can the time bar be overcome by a convincing showing that she committed no crime? We hold that actual innocence, if proved, serves as a gateway through which a petitioner may pass whether the impediment is a procedural bar, as it was in Schlup and House, or, as in this case, expiration of the statute of 2 MCQUIGGIN v. PERKINS Opinion of the Court limitations. We caution, however, that tenable actual- innocence gateway pleas are rare: “[A] petitioner does not meet the threshold requirement unless he persuades the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.” Schlup, 513 U. S., at 329; see House, 547 U. S., at 538 (emphasizing that the Schlup standard is “demanding” and seldom met). And in making an assessment of the kind Schlup envisioned, “the timing of the [petition]” is a factor bearing on the “reliability of th[e] evidence” purporting to show actual innocence. Schlup, 513 U. S., at 332. In the instant case, the Sixth Circuit acknowledged that habeas petitioner Perkins (respondent here) had filed his petition after the statute of limitations ran out, and had “failed to diligently pursue his rights.” Order in No. 09– 1875, (CA6, Feb. 24, 2010), p. 2 (Certificate of Appealabil- ity). Nevertheless, the Court of Appeals reversed the decision of the District Court denying Perkins’ petition, and held that Perkins’ actual-innocence claim allowed him to pursue his habeas petition as if it had been filed on time. 670 F.3d 665, 670 (2012). The appeals court ap- parently considered a petitioner’s delay irrelevant to ap- praisal of an actual-innocence claim. See ibid. We vacate the Court of Appeals’ judgment and remand the case. Our opinion clarifies that a federal habeas court, faced with an actual-innocence gateway claim, should count unjustifiable delay on a habeas petitioner’s part, not as an absolute barrier to relief, but as a factor in determining whether actual innocence has been re- liably shown. See Brief for Respondent 45 (habeas court “could . . . hold the unjustified delay against the petitioner when making credibility findings as to whether the [actual- innocence] exception has been met”). Cite as: 569 U. S. ____ (2013) 3 Opinion of the Court I A On March 4, 1993, respondent Floyd Perkins attended a party in Flint, Michigan, in the company of his friend, Rodney Henderson, and an acquaintance, Damarr Jones. The three men left the party together. Henderson was later discovered on a wooded trail, murdered by stab wounds to his head. Perkins was charged with the murder of Henderson. At trial, Jones was the key witness for the prosecution. He testified that Perkins alone committed the murder while Jones looked on. App. 55. Chauncey Vaughn, a friend of Perkins and Henderson, testified that, prior to the murder, Perkins had told him he would kill Henderson, id., at 39, and that Perkins later called Vaughn, confessing to his commission of the crime. Id., at 36–38. A third witness, Torriano Player, also a friend of both Perkins and Henderson, testified that Per- kins told him, had he known how Player felt about Hen- derson, he would not have killed Henderson. Id., at 74. Perkins, testifying in his own defense, offered a different account of the episode. He testified that he left Hender- son and Jones to purchase cigarettes at a convenience store. When he exited the store, Perkins related, Jones and Henderson were gone. Id., at 84. Perkins said that he then visited his girlfriend. Id., at 87. About an hour later, Perkins recalled, he saw Jones standing under a street- light with blood on his pants, shoes, and plaid coat. Id., at 90. The jury convicted Perkins of first-degree murder. He was sentenced to life in prison without the possibility of parole on October 27, 1993. The Michigan Court of Ap- peals affirmed Perkins’ conviction and sentence, and the Michigan Supreme Court denied Perkins leave to appeal on January 31, 1997. Perkins’ conviction became final on May 5, 1997. 4 MCQUIGGIN v. PERKINS Opinion of the Court B Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 110 Stat. 1214, a state prisoner ordinarily has one year to file a federal petition for habeas corpus, starting from “the date on which the judgment became final by the conclusion of direct review or the ex- piration of the time for seeking such review.” 28 U.S. C. §2244(d)(1)(A). If the petition alleges newly discovered evidence, however, the filing deadline is one year from “the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.” §2244(d)(1)(D). Perkins filed his federal habeas corpus petition on June 13, 2008, more than 11 years after his conviction became final. He alleged, inter alia, ineffective assistance on the part of his trial attorney, depriving him of his Sixth Amendment right to competent counsel. To overcome AEDPA’s time limitations, Perkins asserted newly discov- ered evidence of actual innocence. He relied on three affidavits, each pointing to Jones, not Perkins, as Hender- son’s murderer. The first affidavit, dated January 30, 1997, was submit- ted by Perkins’ sister, Ronda Hudson. Hudson stated that she had heard from a third party, Louis Ford, that Jones bragged about stabbing Henderson and had taken his clothes to the cleaners after the murder. App. to Pet. for Cert. 54a–55a. The second affidavit, dated March 16, 1999, was subscribed to by Demond Louis, Chauncey Vaughn’s younger brother. Louis stated that, on the night of the murder, Jones confessed to him that he had just killed Henderson. Louis also described the clothes Jones wore that night, bloodstained orange shoes and orange pants, and a colorful shirt. Id., at 50a–53a. The next day, Louis added, he accompanied Jones, first to a dumpster where Jones disposed of the bloodstained shoes, and then to the cleaners. Finally, Perkins presented the July 16, Cite as: 569 U. S. ____ (2013) 5 Opinion of the Court 2002 affidavit of Linda Fleming, an employee at Pro-Clean Cleaners in 1993. She stated that, on or about March 4, 1993, a man matching Jones’s description entered the shop and asked her whether bloodstains could be removed from the pants and a shirt he brought in. The pants were orange, she recalled, and heavily stained with blood, as was the multicolored shirt left for cleaning along with the pants. Id., at 48a–49a. The District Court found the affidavits insufficient to entitle Perkins to habeas relief. Characterizing the affi- davits as newly discovered evidence was “dubious,” the District Court observed, in light of what Perkins knew about the underlying facts at the time of trial. Id., at 29a. But even assuming qualification of the affidavits as evi- dence newly discovered, the District Court next explained, “[Perkins’] petition [was] untimely under §2244(d)(1)(D).” Ibid. “[If] the statute of limitations began to run as of the date of the latest of th[e] affidavits, July 16, 2002,” the District Court noted, then “absent tolling, [Perkins] had until July 16, 2003 in which to file his habeas petition.” Ibid. Perkins, however, did not file until nearly five years later, on June 13, 2008. Under Sixth Circuit precedent, the District Court stated, “a habeas petitioner who demonstrates a credible claim of actual innocence based on new evidence may, in ex- ceptional circumstances, be entitled to equitable tolling of habeas limitations.” Id., at 30a. But Perkins had not established exceptional circumstances, the District Court determined. In any event, the District Court observed, equitable tolling requires diligence and Perkins “ha[d] failed utterly to demonstrate the necessary diligence in exercising his rights.” Id., at 31a. Alternatively, the Dis- trict Court found that Perkins had failed to meet the strict standard by which pleas of actual innocence are mea- sured: He had not shown that, taking account of all the evidence, “it is more likely than not that no reasonable 6 MCQUIGGIN v. PERKINS Opinion of the Court juror would have convicted him,” or even that the evidence was new. Id., at 30a–31a. Perkins appealed the District Court’s judgment. Al- though recognizing that AEDPA’s statute of limitations had expired and that Perkins had not diligently pursued his rights, the Sixth Circuit granted a certificate of ap- pealability limited to a single question: Is reasonable diligence a precondition to relying on actual innocence as a gateway to adjudication of a federal habeas petition on the merits? Certificate of Appealability 2–3. On consideration of the certified question, the Court of Appeals reversed the District Court’s judgment. Adhering to Circuit precedent, Souter v. Jones, 395 F.3d 577, 597– 602 (2005), the Sixth Circuit held that Perkins’ gateway actual-innocence allegations allowed him to present his ineffective-assistance-of-counsel claim as if it were filed on time. On remand, the Court of Appeals instructed, “the [D]istrict [C]ourt [should] fully consider whether Perkins assert[ed] a credible claim of actual innocence.” 670 F. 3d, at 676. We granted certiorari to resolve a Circuit conflict on whether AEDPA’s statute of limitations can be overcome by a showing of actual innocence. 568 U. S. ___ (2012). Compare, e.g., San Martin v. McNeil, 633 F.3d 1257, 1267–1268 (CA11 2011) (“A court . . . may consider an untimely §2254 petition if, by refusing to consider the petition for untimeliness, the court thereby would endorse a ‘fundamental miscarriage of justice’ because it would require that an individual who is actually innocent remain imprisoned.”), with, e.g., Escamilla v. Jungwirth, 426 F.3d 868, 871–872 (CA7 2005) (“Prisoners claiming to be innocent, like those contending that other events spoil the conviction, must meet the statutory requirement of timely action.”). See also Rivas v. Fischer, 687 F.3d 514, 548 (CA2 2012) (collecting cases). Cite as: 569 U. S. ____ (2013) 7 Opinion of the Court II A In Holland v. Florida, 560 U. S. ___ (2010), this Court addressed the circumstances in which a federal habeas petitioner could invoke the doctrine of “equitable tolling.” Holland held that “a [habeas] petitioner is entitled to equitable tolling only if he shows (1) that he has been pursuing his rights diligently, and (2) that some extraor- dinary circumstance stood in his way and prevented timely filing.” Id., at ___ (slip op., at 16–17) (internal quotation marks omitted). As the courts below comprehended, Perkins does not qualify for equitable tolling. In posses- sion of all three affidavits by July 2002, he waited nearly six years to seek federal postconviction relief. “Such a delay falls far short of demonstrating the . . . diligence” required to entitle a petitioner to equitable tolling. App. to Pet. for Cert. 31a (District Court opinion). See also Certif- icate of Appealability 2. Perkins, however, asserts not an excuse for filing after the statute of limitations has run. Instead, he maintains that a plea of actual innocence can overcome AEDPA’s one-year statute of limitations. He thus seeks an equi- table exception to §2244(d)(1), not an extension of the time statutorily prescribed. See Rivas, 687 F. 3d, at 547, n. 42 (distinguishing from “equitable tolling” a plea to override the statute of limitations when actual innocence is shown). Decisions of this Court support Perkins’ view of the significance of a convincing actual-innocence claim. We have not resolved whether a prisoner may be entitled to habeas relief based on a freestanding claim of actual innocence. Herrera v. Collins, 506 U.S. 390, 404–405 (1993). We have recognized, however, that a prisoner “otherwise subject to defenses of abusive or successive use of the writ [of habeas corpus] may have his federal consti- tutional claim considered on the merits if he makes a proper showing of actual innocence.” Id., at 404 (citing 8 MCQUIGGIN v. PERKINS Opinion of the Court Sawyer v. Whitley, 505 U.S. 333 (1992)). See also Murray v. Carrier, 477 U.S. 478, 496 (1986) (“[W]e think that in an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default.”). In other words, a credible showing of actual innocence may allow a prisoner to pursue his constitu- tional claims (here, ineffective assistance of counsel) on the merits notwithstanding the existence of a procedural bar to relief. “This rule, or fundamental miscarriage of justice exception, is grounded in the ‘equitable discretion’ of habeas courts to see that federal constitutional errors do not result in the incarceration of innocent persons.” Her- rera, 506 U. S., at 404. We have applied the miscarriage of justice exception to overcome various procedural defaults. These include “successive” petitions asserting previously rejected claims, see Kuhlmann v. Wilson, 477 U.S. 436, 454 (1986) (plural- ity opinion), “abusive” petitions asserting in a second petition claims that could have been raised in a first peti- tion, see McCleskey v. Zant, 499 U.S. 467, 494–495 (1991), failure to develop facts in state court, see Keeney v. Tamayo-Reyes, 504 U.S. 1, 11–12 (1992), and failure to observe state procedural rules, including filing deadlines, see Coleman v. Thompson, 501 U.S. 722, 750 (1991); Carrier, 477 U. S., at 495–496. The miscarriage of justice exception, our decisions bear out, survived AEDPA’s passage. In Calderon v. Thomp- son, 523 U.S. 538 (1998), we applied the exception to hold that a federal court may, consistent with AEDPA, recall its mandate in order to revisit the merits of a decision. Id., at 558 (“The miscarriage of justice standard is alto- gether consistent . . . with AEDPA’s central concern that the merits of concluded criminal proceedings not be revis- ited in the absence of a strong showing of actual inno- Cite as: 569 U. S. ____ (2013) 9 Opinion of the Court cence.”). In Bousley v. United States, 523 U.S. 614, 622 (1998), we held, in the context of §2255, that actual in- nocence may overcome a prisoner’s failure to raise a con- stitutional objection on direct review. Most recently, in House, we reiterated that a prisoner’s proof of actual innocence may provide a gateway for federal habeas re- view of a procedurally defaulted claim of constitutional error. 547 U. S., at 537–538. These decisions “see[k] to balance the societal interests in finality, comity, and conservation of scarce judicial re- sources with the individual interest in justice that arises in the extraordinary case.” Schlup, 513 U. S., at 324. Sensitivity to the injustice of incarcerating an innocent individual should not abate when the impediment is AEDPA’s statute of limitations. As just noted, see supra, at 8, we have held that the miscarriage of justice exception applies to state procedural rules, including filing deadlines. Coleman, 501 U. S., at 750. A federal court may invoke the miscarriage of justice exception to justify consideration of claims defaulted in state court under state timeliness rules. See ibid. The State’s reading of AEDPA’s time prescription would thus accord greater force to a federal deadline than to a simi- larly designed state deadline. It would be passing strange to interpret a statute seeking to promote federalism and comity as requiring stricter enforcement of federal proce- dural rules than procedural rules established and enforced by the States. B The State ties to §2244(d)’s text its insistence that AEDPA’s statute of limitations precludes courts from considering late-filed actual-innocence gateway claims. “Section 2244(d)(1)(D),” the State contends, “forecloses any argument that a habeas petitioner has unlimited time to present new evidence in support of a constitutional claim.” 10 MCQUIGGIN v. PERKINS Opinion of the Court Brief for Petitioner 17. That is so, the State maintains, because AEDPA prescribes a comprehensive system for determining when its one-year limitations period begins to run. “Included within that system,” the State observes, “is a specific trigger for the precise circumstance presented here: a constitutional claim based on new evidence.” Ibid. Section 2244(d)(1)(D) runs the clock from “the date on which the factual predicate of the claim . . . could have been discovered through the exercise of due diligence.” In light of that provision, the State urges, “there is no need for the courts to act in equity to provide additional time for persons who allege actual innocence as a gateway to their claims of constitutional error.” Ibid. Perkins’ request for an equitable exception to the statute of limitations, the State charges, would “rende[r] superfluous this carefully scripted scheme.” Id., at 18. The State’s argument in this regard bears blinders. AEDPA’s time limitations apply to the typical case in which no allegation of actual innocence is made. The miscarriage of justice exception, we underscore, applies to a severely confined category: cases in which new evidence shows “it is more likely than not that no reasonable ju- ror would have convicted [the petitioner].” Schlup, 513 U. S., at 329 (internal quotation marks omitted). Section 2244(d)(1)(D) is both modestly more stringent (because it requires diligence) and dramatically less stringent (be- cause it requires no showing of innocence). Many petitions that could not pass through the actual-innocence gateway will be timely or not measured by §2244(d)(1)(D)’s trigger- ing provision. That provision, in short, will hardly be rendered superfluous by recognition of the miscarriage of justice exception. The State further relies on provisions of AEDPA other than §2244(d)(1)(D), namely, §§2244(b)(2)(B) and 2254(e) (2), to urge that Congress knew how to incorporate the miscarriage of justice exception when it was so minded. Cite as: 569 U. S. ____ (2013) 11 Opinion of the Court Section 2244(b)(2)(B), the State observes, provides that a petitioner whose first federal habeas petition has al- ready been adjudicated when new evidence comes to light may file a second-or-successive petition when, and only when, the facts underlying the new claim would “es- tablish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.” §2244(b)(2)(B)(ii). And §2254(e)(2), which generally bars evidentiary hearings in federal habeas proceedings ini- tiated by state prisoners, includes an exception for pris- oners who present new evidence of their innocence. See §§2254(e)(2)(A)(ii), (B) (permitting evidentiary hearings in federal court if “the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense”). But Congress did not simply incorporate the miscarriage of justice exception into §§2244(b)(2)(B) and 2254(e)(2). Rather, Congress constrained the application of the excep- tion. Prior to AEDPA’s enactment, a court could grant relief on a second-or-successive petition, then known as an “abusive” petition, if the petitioner could show that “a fundamental miscarriage of justice would result from a failure to entertain the claim.” McCleskey, 499 U. S., at 495. Section 2244(b)(2)(B) limits the exception to cases in which “the factual predicate for the claim could not have been discovered previously through the exercise of due diligence,” and the petitioner can establish that no rea- sonable factfinder “would have found [her] guilty of the underlying offense” by “clear and convincing evidence.” Congress thus required second-or-successive habeas peti- tioners attempting to benefit from the miscarriage of justice exception to meet a higher level of proof (“clear and convincing evidence”) and to satisfy a diligence require- 12 MCQUIGGIN v. PERKINS Opinion of the Court ment that did not exist prior to AEDPA’s passage. Likewise, petitioners asserting actual innocence pre- AEDPA could obtain evidentiary hearings in federal court even if they failed to develop facts in state court. See Keeney, 504 U. S., at 12 (“A habeas petitioner’s failure to develop a claim in state-court proceedings will be excused and a hearing mandated if he can show that a fundamen- tal miscarriage of justice would result from failure to hold a federal evidentiary hearing.”). Under AEDPA, a peti- tioner seeking an evidentiary hearing must show diligence and, in addition, establish her actual innocence by clear and convincing evidence. §§2254(e)(2)(A)(ii), (B). Sections 2244(b)(2)(B) and 2254(e)(2) thus reflect Con- gress’ will to modify the miscarriage of justice exception with respect to second-or-successive petitions and the hold- ing of evidentiary hearings in federal court. These pro- visions do not demonstrate Congress’ intent to preclude courts from applying the exception, unmodified, to “the type of petition at issue here”—an untimely first federal habeas petition alleging a gateway actual-innocence claim. House, 547 U. S., at 539.1 The more rational inference to draw from Congress’ incorporation of a modified version of the miscarriage of justice exception in §§2244(b)(2)(B) and —————— 1 In House, we rejected the analogous argument that AEDPA re- placed the standard for actual-innocence gateway claims prescribed in Schlup v. Delo, 513 U.S. 298, 327 (1995) (petitioner “must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence”), with a “clear and convincing” evidence requirement. 547 U. S., at 539 (internal quotation marks omitted). As here, the State relied on §§2244(b)(2)(B)(ii) and 2254(e)(2) to support its argument. But “[n]either provision address[ed] the type of petition at issue . . . [,] a first federal habeas petition seeking consid- eration of defaulted claims based on a showing of actual innocence.” Ibid. Consequently, we held inapplicable to first petitions the stricter standard AEDPA prescribed for second-or-successive petitions. Ibid. Cite as: 569 U. S. ____ (2013) 13 Opinion of the Court 2254(e)(2) is simply this: In a case not governed by those provisions, i.e., a first petition for federal habeas relief, the miscarriage of justice exception survived AEDPA’s pas- sage intact and unrestricted.2 Our reading of the statute is supported by the Court’s opinion in Holland. “[E]quitable principles have tradi- tionally governed the substantive law of habeas corpus,” Holland reminded, and affirmed that “we will not construe a statute to displace courts’ traditional equitable authority absent the clearest command.” 560 U. S., at ___ (slip op., at 13) (internal quotation marks omitted). The text of §2244(d)(1) contains no clear command countering the courts’ equitable authority to invoke the miscarriage of justice exception to overcome expiration of the statute of limitations governing a first federal habeas petition. As we observed in Holland, “AEDPA seeks to eliminate delays in the federal ha- beas review process. But AEDPA seeks to do so with- out undermining basic habeas corpus principles and while seeking to harmonize the new statute with prior law . . . . When Congress codified new rules governing this previously judicially managed area of law, it did so without losing sight of the fact that the writ of ha- beas corpus plays a vital role in protecting constitu- tional rights.” Id., at ___ (slip op., at 16) (citations —————— 2 Prior to AEDPA, it is true, this Court had not ruled that a credible claim of actual innocence could supersede a federal statute of limita- tions. The reason why that is so is evident: Pre-AEDPA, petitions for federal habeas relief were not governed by any statute of limitations. Notably, we said in Coleman v. Thompson, 501 U.S. 722 (1991), that a petitioner who failed to comply with a timeliness requirement in state court could nevertheless plead her claims on the merits in federal court if she could show that “failure to consider the claims [would] result in a fundamental miscarriage of justice.” Id., at 750. 14 MCQUIGGIN v. PERKINS Opinion of the Court and internal quotation marks omitted).3 III Having rejected the State’s argument that §2244(d) (1)(D) precludes a court from entertaining an un- timely first federal habeas petition raising a convincing claim of actual innocence, we turn to the State’s further objection to the Sixth Circuit’s opinion. Even if a habeas petitioner asserting a credible claim of actual innocence may overcome AEDPA’s statute of limitations, the State argues, the Court of Appeals erred in finding that no threshold diligence requirement at all applies to Perkins’ petition. While formally distinct from its argument that §2244(d)(1)(D)’s text forecloses a late-filed claim alleging actual innocence, the State’s contention makes scant sense. Section 2244(d)(1)(D) requires a habeas petitioner to file a claim within one year of the time in which new evidence “could have been discovered through the exercise of due diligence.” It would be bizarre to hold that a habeas —————— 3 For eight pages, the dissent stridently insists that federal (although not state) statutes of limitations allow no exceptions not contained in the text. Well, not quite so, the dissent ultimately acknowledges. Post, at 8. Even AEDPA’s statute of limitations, the dissent admits, is subject to equitable tolling. But that is because equitable tolling “can be seen as a reasonable assumption of genuine legislative intent.” Post, at 9. Why is it not an equally reasonable assumption that Congress would want a limitations period to yield when what is at stake is a State’s incarceration of an individual for a crime, it has become clear, no reasonable person would find he committed? For all its bluster, the dissent agrees with the Court on a crucial point: Congress legis- lates against the backdrop of existing law. Post, at 10. At the time of AEDPA’s enactment, multiple decisions of this Court applied the miscarriage of justice exception to overcome various threshold barriers to relief. See supra, at 7–9. It is hardly “unprecedented,” therefore, to conclude that “Congress intended or could have anticipated [a miscar- riage of justice] exception” when it enacted AEDPA. Post, at 10–11. Cite as: 569 U. S. ____ (2013) 15 Opinion of the Court petitioner who asserts a convincing claim of actual inno- cence may overcome the statutory time bar §2244(d)(1)(D) erects, yet simultaneously encounter a court-fashioned diligence barrier to pursuit of her petition. See 670 F. 3d, at 673 (“Requiring reasonable diligence effectively makes the concept of the actual innocence gateway redundant, since petitioners . . . seek [an equitable exception only] when they were not reasonably diligent in complying with §2244(d)(1)(D).”). While we reject the State’s argument that habeas peti- tioners who assert convincing actual-innocence claims must prove diligence to cross a federal court’s threshold, we hold that the Sixth Circuit erred to the extent that it eliminated timing as a factor relevant in evaluating the reliability of a petitioner’s proof of innocence. To invoke the miscarriage of justice exception to AEDPA’s statute of limitations, we repeat, a petitioner “must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.” Schlup, 513 U. S., at 327. Unexplained delay in presenting new evidence bears on the determination whether the petitioner has made the requisite showing. Perkins so acknowl- edges. See Brief for Respondent 52 (unjustified delay may figure in determining “whether a petitioner has made a sufficient showing of innocence”). As we stated in Schlup, “[a] court may consider how the timing of the submission and the likely credibility of [a petitioner’s] affiants bear on the probable reliability of . . . evidence [of actual inno- cence].” 513 U. S., at 332. See also House, 547 U. S., at 537. Considering a petitioner’s diligence, not discretely, but as part of the assessment whether actual innocence has been convincingly shown, attends to the State’s concern that it will be prejudiced by a prisoner’s untoward delay in proffering new evidence. The State fears that a prisoner might “lie in wait and use stale evidence to collaterally 16 MCQUIGGIN v. PERKINS Opinion of the Court attack his conviction . . . when an elderly witness has died and cannot appear at a hearing to rebut new evidence.” Brief for Petitioner 25. The timing of such a petition, however, should seriously undermine the credibility of the actual-innocence claim. Moreover, the deceased witness’ prior testimony, which would have been subject to cross- examination, could be introduced in the event of a new trial. See Crawford v. Washington, 541 U.S. 36, 53–54 (2004) (recognizing exception to the Confrontation Clause where witness is unavailable and the defendant had a prior opportunity for cross-examination). And frivolous petitions should occasion instant dismissal. See 28 U.S. C. §2254 Rule 4. Focusing on the merits of a peti- tioner’s actual-innocence claim and taking account of delay in that context, rather than treating timeliness as a threshold inquiry, is tuned to the rationale underlying the miscarriage of justice exception—i.e., ensuring “that fed- eral constitutional errors do not result in the incarceration of innocent persons.” Herrera, 506 U. S., at 404.4 IV We now return to the case at hand. The District Court proceeded properly in first determining that Perkins’ claim was filed well beyond AEDPA’s limitations period and that equitable tolling was unavailable to Perkins because he could demonstrate neither exceptional circum- stances nor diligence. See supra, at 5. The District Court then found that Perkins’ alleged newly discovered evi- dence, i.e., the information contained in the three affida- vits, was “substantially available to [Perkins] at trial.” —————— 4 We note one caveat: A showing that delay was part of a deliberate attempt to manipulate the case, say by waiting until a key prosecution witness died or was deported, might raise a different ground for with- holding equitable relief. No such contention was presented here, however, so we do not discuss the point. Cite as: 569 U. S. ____ (2013) 17 Opinion of the Court App. to Pet. for Cert. 31a. Moreover, the proffered evi- dence, even if “new,” was hardly adequate to show that, had it been presented at trial, no reasonable juror would have convicted Perkins. Id., at 30a–31a. The Sixth Circuit granted a certificate of appealability limited to the question whether reasonable diligence is a precondition to reliance on actual innocence as a gateway to adjudication of a federal habeas petition on the merits. We have explained that untimeliness, although not an unyielding ground for dismissal of a petition, does bear on the credibility of evidence proffered to show actual inno- cence. On remand, the District Court’s appraisal of Perkins’ petition as insufficient to meet Schlup’s actual- innocence standard should be dispositive, absent cause, which we do not currently see, for the Sixth Circuit to upset that evaluation. We stress once again that the Schlup standard is demanding. The gateway should open only when a petition presents “evidence of innocence so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of nonharmless constitutional error.” 513 U. S., at 316. * * * For the reasons stated, the judgment of the Sixth Cir- cuit is vacated, and the case is remanded for further pro- ceedings consistent with this opinion. It is so ordered. Cite as: 569 U. S. ____ (2013) 1 SCALIA, J., dissenting SUPREME COURT OF THE UNITED STATES _________________ No. 12–126 _________________ GREG MCQUIGGIN, WARDEN, PETITIONER v.	This case concerns the “actual innocence” gateway to federal habeas review applied in v. Delo, 513 U.S. 298 and further explained in v. Bell, 547 U.S. 518 (2006). In those cases, a convincing showing of actual innocence enabled habeas petitioners to overcome a procedural bar to consideration of the merits of their constitutional claims. Here, the question arises in the context of 28 U.S. C. the statute of limitations on federal habeas petitions prescribed in the Antiterrorism and Effective Death Penalty Act of 1996. Specifically, if the petitioner does not file her federal habeas peti- tion, at the latest, within one year of “the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence,” can the time bar be overcome by a convincing showing that she committed no crime? We hold that actual innocence, if proved, serves as a gateway through which a petitioner may pass whether the impediment is a procedural bar, as it was in and or, as in this case, expiration of the statute of 2 MCQUIGGIN v. PERKINS Opinion of the Court limitations. We caution, however, that tenable actual- innocence gateway pleas are rare: “[A] petitioner does not meet the threshold requirement unless he persuades the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.” ; see (emphasizing that the standard is “demanding” and seldom met). And in making an assessment of the kind envisioned, “the timing of the [petition]” is a factor bearing on the “reliability of th[e] evidence” purporting to show actual innocence. In the instant case, the Sixth Circuit acknowledged that habeas petitioner Perkins (respondent here) had filed his petition after the statute of limitations ran out, and had “failed to diligently pursue his rights.” Order in No. 09– 1875, (CA6, Feb. 24, 2010), p. 2 (Certificate of Appealabil- ity). Nevertheless, the Court of Appeals reversed the decision of the District Court denying Perkins’ petition, and held that Perkins’ actual-innocence claim allowed him to pursue his habeas petition as if it had been filed on time. The appeals court ap- parently considered a petitioner’s delay irrelevant to ap- praisal of an actual-innocence claim. See We vacate the Court of Appeals’ judgment and remand the case. Our opinion clarifies that a federal habeas court, faced with an actual-innocence gateway claim, should count unjustifiable delay on a habeas petitioner’s part, not as an absolute barrier to relief, but as a factor in determining whether actual innocence has been re- liably shown. See Brief for Respondent 45 (habeas court “could hold the unjustified delay against the petitioner when making credibility findings as to whether the [actual- innocence] exception has been met”). Cite as: 569 U. S. (2013) 3 Opinion of the Court I A On March 4, 1993, respondent Floyd Perkins attended a party in Flint, Michigan, in the company of his friend, Rodney Henderson, and an acquaintance, Damarr Jones. The three men left the party together. Henderson was later discovered on a wooded trail, murdered by stab wounds to his head. Perkins was charged with the murder of Henderson. At trial, Jones was the key witness for the prosecution. He testified that Perkins alone committed the murder while Jones looked on. App. 55. Chauncey Vaughn, a friend of Perkins and Henderson, testified that, prior to the murder, Perkins had told him he would kill Henderson, and that Perkins later called Vaughn, confessing to his commission of the crime. at 36–38. A third witness, Torriano Player, also a friend of both Perkins and Henderson, testified that Per- kins told him, had he known how Player felt about Hen- derson, he would not have killed Henderson. Perkins, testifying in his own defense, offered a different account of the episode. He testified that he left Hender- son and Jones to purchase cigarettes at a convenience store. When he exited the store, Perkins related, Jones and Henderson were gone. Perkins said that he then visited his girlfriend. About an hour later, Perkins recalled, he saw Jones standing under a street- light with blood on his pants, shoes, and plaid coat. at 90. The jury convicted Perkins of first-degree murder. He was sentenced to life in prison without the possibility of parole on October 27, 1993. The Michigan Court of Ap- peals affirmed Perkins’ conviction and sentence, and the Michigan Supreme Court denied Perkins leave to appeal on January 31, 1997. Perkins’ conviction became final on May 5, 1997. 4 MCQUIGGIN v. PERKINS Opinion of the Court B Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), a state prisoner ordinarily has one year to file a federal petition for habeas corpus, starting from “the date on which the judgment became final by the conclusion of direct review or the ex- piration of the time for seeking such review.” 28 U.S. C. If the petition alleges newly discovered evidence, however, the filing deadline is one year from “the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.” Perkins filed his federal habeas corpus petition on June 13, 2008, more than 11 years after his conviction became final. He alleged, inter alia, ineffective assistance on the part of his trial attorney, depriving him of his Sixth Amendment right to competent counsel. To overcome AEDPA’s time limitations, Perkins asserted newly discov- ered evidence of actual innocence. He relied on three affidavits, each pointing to Jones, not Perkins, as Hender- son’s murderer. The first affidavit, dated January 30, 1997, was submit- ted by Perkins’ sister, Ronda Hudson. Hudson stated that she had heard from a third party, Louis Ford, that Jones bragged about stabbing Henderson and had taken his clothes to the cleaners after the murder. App. to Pet. for Cert. 54a–55a. The second affidavit, dated March 16, 1999, was subscribed to by Demond Louis, Chauncey Vaughn’s younger brother. Louis stated that, on the night of the murder, Jones confessed to him that he had just killed Henderson. Louis also described the clothes Jones wore that night, bloodstained orange shoes and orange pants, and a colorful shirt. 0a–53a. The next day, Louis added, he accompanied Jones, first to a dumpster where Jones disposed of the bloodstained shoes, and then to the cleaners. Finally, Perkins presented the July 16, Cite as: 569 U. S. (2013) 5 Opinion of the Court 2002 affidavit of Linda Fleming, an employee at Pro-Clean Cleaners in 1993. She stated that, on or about March 4, 1993, a man matching Jones’s description entered the shop and asked her whether bloodstains could be removed from the pants and a shirt he brought in. The pants were orange, she recalled, and heavily stained with blood, as was the multicolored shirt left for cleaning along with the pants. at 48a–49a. The District Court found the affidavits insufficient to entitle Perkins to habeas relief. Characterizing the affi- davits as newly discovered evidence was “dubious,” the District Court observed, in light of what Perkins knew about the underlying facts at the time of trial. at 29a. But even assuming qualification of the affidavits as evi- dence newly discovered, the District Court next explained, “[Perkins’] petition [was] untimely under ” “[If] the statute of limitations began to run as of the date of the latest of th[e] affidavits, July 16, 2002,” the District Court noted, then “absent tolling, [Perkins] had until July 16, 2003 in which to file his habeas petition.” Perkins, however, did not file until nearly five years later, on June 13, 2008. Under Sixth Circuit precedent, the District Court stated, “a habeas petitioner who demonstrates a credible claim of actual innocence based on new evidence may, in ex- ceptional circumstances, be entitled to equitable tolling of habeas limitations.” at 30a. But Perkins had not established exceptional circumstances, the District Court determined. In any event, the District Court observed, equitable tolling requires diligence and Perkins “ha[d] failed utterly to demonstrate the necessary diligence in exercising his rights.” at 31a. Alternatively, the Dis- trict Court found that Perkins had failed to meet the strict standard by which pleas of actual innocence are mea- sured: He had not shown that, taking account of all the evidence, “it is more likely than not that no reasonable 6 MCQUIGGIN v. PERKINS Opinion of the Court juror would have convicted him,” or even that the evidence was new. at 30a–31a. Perkins appealed the District Court’s judgment. Al- though recognizing that AEDPA’s statute of limitations had expired and that Perkins had not diligently pursued his rights, the Sixth Circuit granted a certificate of ap- pealability limited to a single question: Is reasonable diligence a precondition to relying on actual innocence as a gateway to adjudication of a federal habeas petition on the merits? Certificate of Appealability 2–3. On consideration of the certified question, the Court of Appeals reversed the District Court’s judgment. Adhering to Circuit precedent, 597– 602 (2005), the Sixth Circuit held that Perkins’ gateway actual-innocence allegations allowed him to present his ineffective-assistance-of-counsel claim as if it were filed on time. On remand, the Court of Appeals instructed, “the [D]istrict [C]ourt [should] fully consider whether Perkins assert[ed] a credible claim of actual innocence.” F. 3d, at 676. We granted certiorari to resolve a Circuit conflict on whether AEDPA’s statute of limitations can be overcome by a showing of actual innocence. 568 U. S. Compare, e.g., San 1267–1268 (CA11 2011) (“A court may consider an untimely petition if, by refusing to consider the petition for untimeliness, the court thereby would endorse a ‘fundamental miscarriage of justice’ because it would require that an individual who is actually innocent remain imprisoned.”), with, e.g., Escamilla v. Jungwirth, 426 F.3d 868, 871–872 (CA7 2005) (“Prisoners claiming to be innocent, like those contending that other events spoil the conviction, must meet the statutory requirement of timely action.”). See also (collecting cases). Cite as: 569 U. S. (2013) 7 Opinion of the Court II A In Holland v. Florida, 560 U. S. (2010), this Court addressed the circumstances in which a federal habeas petitioner could invoke the doctrine of “equitable tolling.” Holland held that “a [habeas] petitioner is entitled to equitable tolling only if he shows (1) that he has been pursuing his rights diligently, and (2) that some extraor- dinary circumstance stood in his way and prevented timely filing.” at (slip op., at 16–17) (internal quotation marks omitted). As the courts below comprehended, Perkins does not qualify for equitable tolling. In posses- sion of all three affidavits by July 2002, he waited nearly six years to seek federal postconviction relief. “Such a delay falls far short of demonstrating the diligence” required to entitle a petitioner to equitable tolling. App. to Pet. for Cert. 31a (District Court opinion). See also Certif- icate of Appealability 2. Perkins, however, asserts not an excuse for filing after the statute of limitations has run. Instead, he maintains that a plea of actual innocence can overcome AEDPA’s one-year statute of limitations. He thus seeks an equi- table exception to not an extension of the time statutorily prescribed. See n. 42 (distinguishing from “equitable tolling” a plea to override the statute of limitations when actual innocence is shown). Decisions of this Court support Perkins’ view of the significance of a convincing actual-innocence claim. We have not resolved whether a prisoner may be entitled to habeas relief based on a freestanding claim of actual innocence. 404–405 (1993). We have recognized, however, that a prisoner “otherwise subject to defenses of abusive or successive use of the writ [of habeas corpus] may have his federal consti- tutional claim considered on the merits if he makes a proper showing of actual innocence.” at 404 ). See also Murray v. (“[W]e think that in an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default.”). In other words, a credible showing of actual innocence may allow a prisoner to pursue his constitu- tional claims (here, ineffective assistance of counsel) on the merits notwithstanding the existence of a procedural bar to relief. “This rule, or fundamental miscarriage of justice exception, is grounded in the ‘equitable discretion’ of habeas courts to see that federal constitutional errors do not result in the incarceration of innocent persons.” Her- We have applied the miscarriage of justice exception to overcome various procedural defaults. These include “successive” petitions asserting previously rejected claims, see (plural- ity opinion), “abusive” petitions asserting in a second petition claims that could have been raised in a first peti- tion, see 494–495 failure to develop facts in state court, see v. Tamayo-Reyes, and failure to observe state procedural rules, including filing deadlines, see ; –. The miscarriage of justice exception, our decisions bear out, survived AEDPA’s passage. In we applied the exception to hold that a federal court may, consistent with AEDPA, recall its mandate in order to revisit the merits of a decision. (“The miscarriage of justice standard is alto- gether consistent with AEDPA’s central concern that the merits of concluded criminal proceedings not be revis- ited in the absence of a strong showing of actual inno- Cite as: 569 U. S. (2013) 9 Opinion of the Court cence.”). In we held, in the context of that actual in- nocence may overcome a prisoner’s failure to raise a con- stitutional objection on direct review. Most recently, in we reiterated that a prisoner’s proof of actual innocence may provide a gateway for federal habeas re- view of a procedurally defaulted claim of constitutional –538. These decisions “see[k] to balance the societal interests in finality, comity, and conservation of scarce judicial re- sources with the individual interest in justice that arises in the extraordinary case.” Sensitivity to the injustice of incarcerating an innocent individual should not abate when the impediment is AEDPA’s statute of limitations. As just noted, see we have held that the miscarriage of justice exception applies to state procedural rules, including filing deadlines. Coleman, 501 U. S., at 750. A federal court may invoke the miscarriage of justice exception to justify consideration of claims defaulted in state court under state timeliness rules. See The State’s reading of AEDPA’s time prescription would thus accord greater force to a federal deadline than to a simi- larly designed state deadline. It would be passing strange to interpret a statute seeking to promote federalism and comity as requiring stricter enforcement of federal proce- dural rules than procedural rules established and enforced by the States. B The State ties to text its insistence that AEDPA’s statute of limitations precludes courts from considering late-filed actual-innocence gateway claims. “Section 2244(d)(1)(D),” the State contends, “forecloses any argument that a habeas petitioner has unlimited time to present new evidence in support of a constitutional claim.” 10 MCQUIGGIN v. PERKINS Opinion of the Court Brief for Petitioner 17. That is so, the State maintains, because AEDPA prescribes a comprehensive system for determining when its one-year limitations period begins to run. “Included within that system,” the State observes, “is a specific trigger for the precise circumstance presented here: a constitutional claim based on new evidence.” Section 2244(d)(1)(D) runs the clock from “the date on which the factual predicate of the claim could have been discovered through the exercise of due diligence.” In light of that provision, the State urges, “there is no need for the courts to act in equity to provide additional time for persons who allege actual innocence as a gateway to their claims of constitutional ” Perkins’ request for an equitable exception to the statute of limitations, the State charges, would “rende[r] superfluous this carefully scripted scheme.” The State’s argument in this regard bears blinders. AEDPA’s time limitations apply to the typical case in which no allegation of actual innocence is made. The miscarriage of justice exception, we underscore, applies to a severely confined category: cases in which new evidence shows “it is more likely than not that no reasonable ju- ror would have convicted [the petitioner].” 513 U. S., at 329 (internal quotation marks omitted). Section 2244(d)(1)(D) is both modestly more stringent (because it requires diligence) and dramatically less stringent (be- cause it requires no showing of innocence). Many petitions that could not pass through the actual-innocence gateway will be timely or not measured by trigger- ing provision. That provision, in short, will hardly be rendered superfluous by recognition of the miscarriage of justice exception. The State further relies on provisions of AEDPA other than namely, and 2254(e) (2), to urge that Congress knew how to incorporate the miscarriage of justice exception when it was so minded. Cite as: 569 U. S. (2013) 11 Opinion of the Court Section 2244(b)(2)(B), the State observes, provides that a petitioner whose first federal habeas petition has al- ready been adjudicated when new evidence comes to light may file a second-or-successive petition when, and only when, the facts underlying the new claim would “es- tablish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.” And (e)(2), which generally bars evidentiary hearings in federal habeas proceedings ini- tiated by state prisoners, includes an exception for pris- oners who present new evidence of their innocence. See §(e)(2)(A)(ii), (B) (permitting evidentiary hearings in federal court if “the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense”). But Congress did not simply incorporate the miscarriage of justice exception into and 2254(e)(2). Rather, Congress constrained the application of the excep- tion. Prior to AEDPA’s enactment, a court could grant relief on a second-or-successive petition, then known as an “abusive” petition, if the petitioner could show that “a fundamental miscarriage of justice would result from a failure to entertain the claim.” McCleskey, 499 U. S., at 495. Section 2244(b)(2)(B) limits the exception to cases in which “the factual predicate for the claim could not have been discovered previously through the exercise of due diligence,” and the petitioner can establish that no rea- sonable factfinder “would have found [her] guilty of the underlying offense” by “clear and convincing evidence.” Congress thus required second-or-successive habeas peti- tioners attempting to benefit from the miscarriage of justice exception to meet a higher level of proof (“clear and convincing evidence”) and to satisfy a diligence require- 12 MCQUIGGIN v. PERKINS Opinion of the Court ment that did not exist prior to AEDPA’s passage. Likewise, petitioners asserting actual innocence pre- AEDPA could obtain evidentiary hearings in federal court even if they failed to develop facts in state court. See (“A habeas petitioner’s failure to develop a claim in state-court proceedings will be excused and a hearing mandated if he can show that a fundamen- tal miscarriage of justice would result from failure to hold a federal evidentiary hearing.”). Under AEDPA, a peti- tioner seeking an evidentiary hearing must show diligence and, in addition, establish her actual innocence by clear and convincing evidence. §(e)(2)(A)(ii), (B). Sections 2244(b)(2)(B) and 2254(e)(2) thus reflect Con- gress’ will to modify the miscarriage of justice exception with respect to second-or-successive petitions and the hold- ing of evidentiary hearings in federal court. These pro- visions do not demonstrate Congress’ intent to preclude courts from applying the exception, unmodified, to “the type of petition at issue here”—an untimely first federal habeas petition alleging a gateway actual-innocence claim.1 The more rational inference to draw from Congress’ incorporation of a modified version of the miscarriage of justice exception in and —————— 1 In we rejected the analogous argument that AEDPA re- placed the standard for actual-innocence gateway claims prescribed in v. Delo, (petitioner “must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence”), with a “clear and convincing” evidence (internal quotation marks omitted). As here, the State relied on (ii) and 2254(e)(2) to support its argument. But “[n]either provision address[ed] the type of petition at issue [,] a first federal habeas petition seeking consid- eration of defaulted claims based on a showing of actual innocence.” Consequently, we held inapplicable to first petitions the stricter standard AEDPA prescribed for second-or-successive petitions. Cite as: 569 U. S. (2013) 13 Opinion of the Court 2254(e)(2) is simply this: In a case not governed by those provisions, i.e., a first petition for federal habeas relief, the miscarriage of justice exception survived AEDPA’s pas- sage intact and unrestricted.2 Our reading of the statute is supported by the Court’s opinion in Holland. “[E]quitable principles have tradi- tionally governed the substantive law of habeas corpus,” Holland reminded, and affirmed that “we will not construe a statute to displace courts’ traditional equitable authority absent the clearest command.” 560 U. S., at (slip op., at 13) (internal quotation marks omitted). The text of contains no clear command countering the courts’ equitable authority to invoke the miscarriage of justice exception to overcome expiration of the statute of limitations governing a first federal habeas petition. As we observed in Holland, “AEDPA seeks to eliminate delays in the federal ha- beas review process. But AEDPA seeks to do so with- out undermining basic habeas corpus principles and while seeking to harmonize the new statute with prior law When Congress codified new rules governing this previously judicially managed area of law, it did so without losing sight of the fact that the writ of ha- beas corpus plays a vital role in protecting constitu- tional rights.” at (slip op., at 16) that a petitioner who failed to comply with a timeliness requirement in state court could nevertheless plead her claims on the merits in federal court if she could show that “failure to consider the claims [would] result in a fundamental miscarriage of justice.” 14 MCQUIGGIN v. PERKINS Opinion of the Court and internal quotation marks omitted).3 III Having rejected the State’s argument that (1)(D) precludes a court from entertaining an un- timely first federal habeas petition raising a convincing claim of actual innocence, we turn to the State’s further objection to the Sixth Circuit’s opinion. Even if a habeas petitioner asserting a credible claim of actual innocence may overcome AEDPA’s statute of limitations, the State argues, the Court of Appeals erred in finding that no threshold diligence requirement at all applies to Perkins’ petition. While formally distinct from its argument that text forecloses a late-filed claim alleging actual innocence, the State’s contention makes scant sense. Section 2244(d)(1)(D) requires a habeas petitioner to file a claim within one year of the time in which new evidence “could have been discovered through the exercise of due diligence.” It would be bizarre to hold that a habeas —————— 3 For eight pages, the dissent stridently insists that federal (although not state) statutes of limitations allow no exceptions not contained in the text. Well, not quite so, the dissent ultimately acknowledges. Post, Even AEDPA’s statute of limitations, the dissent admits, is subject to equitable tolling. But that is because equitable tolling “can be seen as a reasonable assumption of genuine legislative intent.” Post, at 9. Why is it not an equally reasonable assumption that Congress would want a limitations period to yield when what is at stake is a State’s incarceration of an individual for a crime, it has become clear, no reasonable person would find he committed? For all its bluster, the dissent agrees with the Court on a crucial point: Congress legis- lates against the backdrop of existing law. Post, at 10. At the time of AEDPA’s enactment, multiple decisions of this Court applied the miscarriage of justice exception to overcome various threshold barriers to relief. See at 7–9. It is hardly “unprecedented,” therefore, to conclude that “Congress intended or could have anticipated [a miscar- riage of justice] exception” when it enacted AEDPA. Post, at 10–11. Cite as: 569 U. S. (2013) 15 Opinion of the Court petitioner who asserts a convincing claim of actual inno- cence may overcome the statutory time bar (D) erects, yet simultaneously encounter a court-fashioned diligence barrier to pursuit of her petition. See F. 3d, at 673 (“Requiring reasonable diligence effectively makes the concept of the actual innocence gateway redundant, since petitioners seek [an equitable exception only] when they were not reasonably diligent in complying with ”). While we reject the State’s argument that habeas peti- tioners who assert convincing actual-innocence claims must prove diligence to cross a federal court’s threshold, we hold that the Sixth Circuit erred to the extent that it eliminated timing as a factor relevant in evaluating the reliability of a petitioner’s proof of innocence. To invoke the miscarriage of justice exception to AEDPA’s statute of limitations, we repeat, a petitioner “must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.” 513 U. S., at Unexplained delay in presenting new evidence bears on the determination whether the petitioner has made the requisite showing. Perkins so acknowl- edges. See Brief for Respondent 52 (unjustified delay may figure in determining “whether a petitioner has made a sufficient showing of innocence”). As we stated in “[a] court may consider how the timing of the submission and the likely credibility of [a petitioner’s] affiants bear on the probable reliability of evidence [of actual inno- cence].” See also 547 U. S., at 537. Considering a petitioner’s diligence, not discretely, but as part of the assessment whether actual innocence has been convincingly shown, attends to the State’s concern that it will be prejudiced by a prisoner’s untoward delay in proffering new evidence. The State fears that a prisoner might “lie in wait and use stale evidence to collaterally 16 MCQUIGGIN v. PERKINS Opinion of the Court attack his conviction when an elderly witness has died and cannot appear at a hearing to rebut new evidence.” Brief for Petitioner 25. The timing of such a petition, however, should seriously undermine the credibility of the actual-innocence claim. Moreover, the deceased witness’ prior testimony, which would have been subject to cross- examination, could be introduced in the event of a new trial. See 53–54 (2004) (recognizing exception to the Confrontation Clause where witness is unavailable and the defendant had a prior opportunity for cross-examination). And frivolous petitions should occasion instant dismissal. See 28 U.S. C. Rule 4. Focusing on the merits of a peti- tioner’s actual-innocence claim and taking account of delay in that context, rather than treating timeliness as a threshold inquiry, is tuned to the rationale underlying the miscarriage of justice exception—i.e., ensuring “that fed- eral constitutional errors do not result in the incarceration of innocent persons.” Her,4 IV We now return to the case at hand. The District Court proceeded properly in first determining that Perkins’ claim was filed well beyond AEDPA’s limitations period and that equitable tolling was unavailable to Perkins because he could demonstrate neither exceptional circum- stances nor diligence. See The District Court then found that Perkins’ alleged newly discovered evi- dence, i.e., the information contained in the three affida- vits, was “substantially available to [Perkins] at trial.” —————— 4 We note one caveat: A showing that delay was part of a deliberate attempt to manipulate the case, say by waiting until a key prosecution witness died or was deported, might raise a different ground for with- holding equitable relief. No such contention was presented here, however, so we do not discuss the point. Cite as: 569 U. S. (2013) 17 Opinion of the Court App. to Pet. for Cert. 31a. Moreover, the proffered evi- dence, even if “new,” was hardly adequate to show that, had it been presented at trial, no reasonable juror would have convicted Perkins. at 30a–31a. The Sixth Circuit granted a certificate of appealability limited to the question whether reasonable diligence is a precondition to reliance on actual innocence as a gateway to adjudication of a federal habeas petition on the merits. We have explained that untimeliness, although not an unyielding ground for dismissal of a petition, does bear on the credibility of evidence proffered to show actual inno- cence. On remand, the District Court’s appraisal of Perkins’ petition as insufficient to meet ’s actual- innocence standard should be dispositive, absent cause, which we do not currently see, for the Sixth Circuit to upset that evaluation. We stress once again that the standard is demanding. The gateway should open only when a petition presents “evidence of innocence so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of nonharmless constitutional ” 513 U. S., at 316. * * * For the reasons stated, the judgment of the Sixth Cir- cuit is vacated, and the case is remanded for further pro- ceedings consistent with this opinion. It is so ordered. Cite as: 569 U. S. (2013) 1 SCALIA, J., dissenting SUPREME COURT OF THE UNITED STATES No. 12–126 GREG MCQUIGGIN, WARDEN, PETITIONER v.	2,090
Justice Scalia	dissenting	false	McQuiggin v. Perkins	2013-05-28	null	https://www.courtlistener.com/opinion/872995/mcquiggin-v-perkins/	https://www.courtlistener.com/api/rest/v3/clusters/872995/	2,013	2012-048	2	5	4	The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) provides that a “1-year period of limitation shall apply” to a state prisoner’s application for a writ of habeas corpus in federal court. 28 U.S. C. §2244(d)(1). The gaping hole in today’s opinion for the Court is its failure to answer the crucial question upon which all else depends: What is the source of the Court’s power to fash- ion what it concedes is an “exception” to this clear statu- tory command? That question is unanswered because there is no an- swer. This Court has no such power, and not one of the cases cited by the opinion says otherwise. The Constitu- tion vests legislative power only in Congress, which never enacted the exception the Court creates today. That in- convenient truth resolves this case. I A “Actual innocence” has, until today, been an exception only to judge-made, prudential barriers to habeas relief, or as a means of channeling judges’ statutorily conferred discretion not to apply a procedural bar. Never before 2 MCQUIGGIN v. PERKINS SCALIA, J., dissenting have we applied the exception to circumvent a categorical statutory bar to relief. We have not done so because we have no power to do so. Where Congress has erected a constitutionally valid barrier to habeas relief, a court cannot decline to give it effect. Before AEDPA, the Supreme Court had developed an array of doctrines, see, e.g., Wainwright v. Sykes, 433 U.S. 72, 87 (1977) (procedural default); McCleskey v. Zant, 499 U.S. 467, 489 (1991) (abuse of the writ), to limit the ha- beas practice that it had radically expanded in the early or mid-20th century to include review of the merits of convic- tion and not merely jurisdiction of the convicting court, see Stone v. Powell, 428 U.S. 465, 475–478 (1976) (citing Frank v. Mangum, 237 U.S. 309 (1915)); Brown v. Allen, 344 U.S. 443, 533–534 (1953) (Jackson, J., concurring in result); Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv. L. Rev. 441, 483–499 (1963). For example, the doctrine of procedural default holds that a state prisoner’s default of his federal claims “in state court pursuant to an independent and adequate state procedural rule” bars federal habeas re- view of those claims. Coleman v. Thompson, 501 U.S. 722, 750 (1991). That doctrine is not a statutory or ju- risdictional command; rather, it is a “prudential” rule “grounded in ‘considerations of comity and concerns for the orderly administration of criminal justice.’ ” Dretke v. Haley, 541 U.S. 386, 392–393 (2004) (quoting Francis v. Henderson, 425 U.S. 536, 538–539 (1976)). And what courts have created, courts can modify. One judge-made exception to procedural default allows a peti- tioner to proceed where he can demonstrate “cause” for the default and “prejudice.” See Coleman, supra, at 750. As relevant here, we have also expressed a willingness to excuse a petitioner’s default, even absent a showing of cause, “where a constitutional violation has probably resulted in the conviction of one who is actually innocent.” Cite as: 569 U. S. ____ (2013) 3 SCALIA, J., dissenting Murray v. Carrier, 477 U.S. 478, 496 (1986); see Schlup v. Delo, 513 U.S. 298, 326–327 (1995); House v. Bell, 547 U.S. 518, 536–537 (2006). There is nothing inherently inappropriate (as opposed to merely unwise) about judge-created exceptions to judge- made barriers to relief. Procedural default, for example, raises “no question of a federal district court’s power to entertain an application for a writ of habeas corpus.” Francis, supra, at 538. Where a petitioner would, but for a judge-made doctrine like procedural default, have a good habeas claim, it offends no command of Congress’s for a federal court to consider the petition. But that free-and- easy approach has no place where a statutory bar to habeas relief is at issue. “[T]he power to award the writ by any of the courts of the United States, must be given by writ- ten law,” Ex parte Bollman, 4 Cranch 75, 94 (1807) (Mar- shall, C. J.), and “judgments about the proper scope of the writ are ‘normally for Congress to make,’ ” Felker v. Turpin, 518 U.S. 651, 664 (1996) (quoting Lonchar v. Thomas, 517 U.S. 314, 323 (1996)). One would have thought it too obvious to mention that this Court is duty bound to enforce AEDPA, not amend it. B Because we have no “equitable” power to discard statu- tory barriers to habeas relief, we cannot simply extend judge-made exceptions to judge-made barriers into the statutory realm. The Court’s insupportable leap from judge-made procedural bars to all procedural bars, includ- ing statutory bars, does all the work in its opinion—and there is not a whit of precedential support for it. McCles- key v. Zant applied a “miscarriage of justice” exception to the judge-made abuse-of-the-writ doctrine. 499 U. S., at 487–489, 495. Coleman v. Thompson and Murray v. Car- rier applied it to the judge-made procedural-default doc- trine. 501 U. S., at 750; 477 U. S., at 496. Keeney v. 4 MCQUIGGIN v. PERKINS SCALIA, J., dissenting Tamayo-Reyes, 504 U.S. 1 (1992), applied it to a variant of procedural default: a state prisoner’s failure adequately to develop material facts in state court. Id., at 8. Kuhlmann v. Wilson, 477 U.S. 436 (1986), a plurality opinion, ap- plied it to a statute that merely said lower federal courts “need not” entertain successive petitions, thus leaving them with “discretion to entertain successive petitions under some circumstances.” Id., at 449, 451 (emphasis added). Not one of the cases on which the Court relies today supports the extraordinary premise that courts can create out of whole cloth an exception to a statutory bar to relief. The opinion for the Court also trots out post-AEDPA cases to prove the irrelevant point that “[t]he miscarriage of justice exception . . . survived AEDPA’s passage.” Ante, at 8. What it ignores, yet again, is that after AEDPA’s passage, as before, the exception applied only to nonstatu- tory obstacles to relief. Bousley v. United States and House v. Bell were applications of the judge-made doctrine of procedural default. See Bousley, 523 U.S. 614, 623 (1998); id., at 625 (Stevens, J., concurring in part and dissenting in part) (“I agree with the Court’s central hold- ing . . . that none of its judge-made rules foreclose peti- tioner’s collateral attack . . .” (emphasis added)); id., at 630 (SCALIA, J., dissenting); House, 547 U. S., at 522. Calderon v. Thompson, 523 U.S. 538 (1998), a non- AEDPA case, involved the courts of appeals’ “inherent power to recall their mandates, subject to review for an abuse of discretion,” id., at 549; it stands only for the proposition that the miscarriage-of-justice exception is an appropriate “ ‘means of channeling’ ” that discretion, id., at 559 (quoting McCleskey, supra, at 496). The Court’s opinion, in its way, acknowledges the dearth of precedential support for its holding. “Prior to AEDPA,” it concedes, “this Court had not ruled that a credible claim of actual innocence could supersede a federal statute of Cite as: 569 U. S. ____ (2013) 5 SCALIA, J., dissenting limitations.” Ante, at 13, n. 2. Its explanation for this lack of precedent is that before AEDPA, “petitions for federal habeas relief were not governed by any statute of limita- tions.” Ibid. That is true but utterly unprobative. There are many statutory bars to relief other than statutes of limitations, and we had never (and before today, have never) created an actual-innocence exception to any of them. The reason why is obvious: Judicially amending a validly enacted statute in this way is a flagrant breach of the separation of powers. II The Court has no qualms about transgressing such a basic principle. It does not even attempt to cloak its act of judicial legislation in the pretense that it is merely con- struing the statute; indeed, it freely admits that its opin- ion recognizes an “exception” that the statute does not contain. Ante, at 7. And it dismisses, with a series of transparent non sequiturs, Michigan’s overwhelming textual argument that the statute provides no such excep- tion and envisions none. The key textual point is that two provisions of §2244, working in tandem, provide a comprehensive path to relief for an innocent prisoner who has newly discovered evi- dence that supports his constitutional claim. Section 2244(d)(1)(D) gives him a fresh year in which to file, start- ing on “the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence,” while §2244(b)(2)(B) lifts the bar on second or successive petitions. Congress clearly anticipated the scenario of a habeas petitioner with a credible innocence claim and addressed it by crafting an exception (and an exception, by the way, more restrictive than the one that pleases the Court today). One cannot assume that Congress left room for other, judge-made applications of the actual-innocence exception, any more 6 MCQUIGGIN v. PERKINS SCALIA, J., dissenting than one would add another gear to a Swiss watch on the theory that the watchmaker surely would have included it if he had thought of it. In both cases, the intricate crafts- manship tells us that the designer arranged things just as he wanted them. The Court’s feeble rejoinder is that its (judicially in- vented) version of the “actual innocence” exception applies only to a “severely confined category” of cases. Ante, at 10. Since cases qualifying for the actual-innocence exception will be rare, it explains, the statutory path for innocent petitioners will not “be rendered superfluous.” Ibid. That is no answer at all. That the Court’s exception would not entirely frustrate Congress’s design does not weaken the force of the State’s argument that Congress addressed the issue comprehensively and chose to exclude dilatory prisoners like respondent. By the Court’s logic, a statute banning littering could simply be deemed to contain an exception for cigarette butts; after all, the statute as thus amended would still cover something. That is not how a court respectful of the separation of powers should inter- pret statutes. Even more bizarre is the Court’s concern that applying AEDPA’s statute of limitations without recognizing an atextual actual-innocence exception would “accord greater force to a federal deadline than to a similarly designed state deadline.” Ante, at 9; see also ante, at 13, n. 2. The Court terms that outcome “passing strange,” ante, at 9, but it is not strange at all. Only federal statutes of limita- tions bind federal habeas courts with the force of law; a state statute of limitations is given effect on federal habeas review only by virtue of the judge-made doctrine of procedural default.1 See Coleman, 501 U. S., at 730–731. —————— 1 If the Court is really troubled by this disparity, there is a way to resolve it that is consistent with the separation of powers: Revise our judge-made procedural-default doctrine to give absolute preclusive Cite as: 569 U. S. ____ (2013) 7 SCALIA, J., dissenting With its eye firmly fixed on something it likes—a shiny new exception to a statute unloved in the best circles—the Court overlooks this basic distinction, which would not trouble a second-year law student armed with a copy of Hart & Wechsler. The Court simply ignores basic legal principles where they pose an obstacle to its policy-driven, free-form improvisation. The Court’s statutory-construction blooper reel does not end there. Congress’s express inclusion of innocence- based exceptions in two neighboring provisions of the Act confirms, one would think, that there is no actual- innocence exception to §2244(d)(1). Section 2244(b)(2)(B), as already noted, lifts the bar on claims presented in second or successive petitions where “the factual predicate for the claim could not have been discovered previously through . . . due diligence” and “the facts underlying the claim . . . would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found” the petitioner guilty. Section 2254(e)(2) permits a district court to hold an evidentiary hearing where a diligent state prisoner’s claim relies on new facts that “would be sufficient to estab- lish by clear and convincing evidence that but for constitu- tional error, no reasonable factfinder would have found” him guilty. Ordinarily, we would draw from the express enumeration of these two actual-innocence exceptions the inference that no others were intended. The Court’s twisting path to the contrary conclusion is not easy to follow, but I will try. In the Court’s view, the key fact here is that these two provisions of AEDPA codi- fied what had previously been judge-made barriers to relief and applied to them a stricter actual-innocence standard than the courts had been applying. See ante, at 11–12. From this, the Court reasons that Congress made —————— effect to state statutes of limitations. 8 MCQUIGGIN v. PERKINS SCALIA, J., dissenting a conscious choice not also to apply the more restrictive actual-innocence standard to the statute of limitations. Ergo, the Court concludes, we are free to apply the more lenient version of the actual-innocence exception. Ante, at 12–13. That clever account ignores the background against which Congress legislated. Of course Congress did not “constrain” application of the actual-innocence excep- tion to the statute of limitations. It felt no need to do so, because it had no reason whatsoever to suspect that any version of the exception would apply to the statute of limitations. The collective efforts of respondent and the majority have turned up not a single instance where this Court has applied the actual-innocence exception to any statutory barrier to habeas relief, much less to a statute of limitations. See Part I–B, supra. What has been said of equitable tolling applies in spades to non-tolling judi- cial inventions: “Congress cannot intend to incorporate, by silence, various forms of equitable tolling that were not generally recognized in the common law at the time of enactment.” Bain & Colella, Interpreting Federal Statutes of Limitations, 37 Creighton L. Rev. 493, 503 (2004). The only conceivable relevance of §§2244(b)(2)(B) and 2254(e)(2) is (1) as we have said, that no other actual- innocence exception was intended, and (2) that if Congress had anticipated that this Court would amend §2244(d)(1) to add an actual-innocence exception (which it surely did not), it would have desired the more stringent formulation and not the expansive formulation applied today, which it specifically rejected for those other provisions. III Three years ago, in Holland v. Florida, 560 U. S. ___ (2010), we held that AEDPA’s statute of limitations is subject to equitable tolling. That holding offers no support for importing a novel actual-innocence exception. Equit- able tolling—extending the deadline for a filing because of Cite as: 569 U. S. ____ (2013) 9 SCALIA, J., dissenting an event or circumstance that deprives the filer, through no fault of his own, of the full period accorded by the statute—seeks to vindicate what might be considered the genuine intent of the statute. By contrast, suspending the statute because of a separate policy that the court believes should trump it (“actual innocence”) is a blatant over- ruling. Moreover, the doctrine of equitable tolling is cen- turies old, and dates from a time when the separation of the legislative and judicial powers was incomplete. See, e.g., Bree v. Holbech, 2 Doug. 655, 656 (1781) (Mansfield, J.); South-Sea Co. v. Wymondsell, 24 E. R. 1004, 3 P. Wms. 143, 144 (1732); Booth v. Warrington, 2 E. R. 111, 112– 113, 4 Bro. P. C. 163, 165–166 (1714); see also Holmberg v. Armbrecht, 327 U.S. 392, 396–397 (1946); Exploration Co. v. United States, 247 U.S. 435, 446–447 (1918); Bailey v. Glover, 21 Wall. 342, 348 (1875); Sherwood v. Sutton, 21 F. Cas. 1303, 1304–1305 (No. 12,782) (CCNH 1828) (Story, J.); Jones v. Conoway, 4 Yeates 109 (Pa. 1804). As Profes- sor Manning has explained, until the Glorious Revolution of 1688, the Crown retained “pretensions to independent legislative authority, and English judges continued to serve as the Crown’s agents, in theory and practice a component of the executive. Given these conditions, which distinguish the old English from the American constitu- tional context, it is not surprising to find a similarly indis- tinct line between appropriate legislative and judicial functions in matters of interpretation.” Manning, Textual- ism and the Equity of the Statute, 101 Colum. L. Rev. 1, 36–37 (2001) (footnote omitted). Thus, the doctrine of the equity of the statute, of which equitable tolling was an example, was reflected in Blackstone’s Commentaries “two-thirds of the way through the eighteenth century.” Manning, supra, at 52. American courts’ later adoption of the English equitable- tolling practice need not be regarded as a violation of the separation of powers, but can be seen as a reasonable 10 MCQUIGGIN v. PERKINS SCALIA, J., dissenting assumption of genuine legislative intent. Colonial legisla- tures would have assumed that equitable tolling would attend any statute of limitations they adopted. In any case, equitable tolling surely represents such a reasonable assumption today. “It is hornbook law that limitations periods are customarily subject to equitable tolling, unless tolling would be inconsistent with the text of the relevant statute. Congress must be presumed to draft limitations periods in light of this background principle.” Young v. United States, 535 U.S. 43, 49–50 (2002) (internal quota- tion marks and citations omitted); see Manning, What Divides Textualists from Purposivists? 106 Colum. L. Rev. 70, 81–82, and n. 42 (2006). Congress, being well aware of the longstanding background presumption of equitable tolling, “may provide otherwise if it wishes to do so.” Irwin v. Department of Veterans Affairs, 498 U.S. 89, 96 (1990). The majority and dissenting opinions in Holland disputed whether that presumption had been overcome, but all agreed that the presumption existed and was a legitimate tool for construing statutes of limitations. See Holland, 560 U. S., at ___ (slip op., at 13); id., at ___ (SCALIA, J., dissenting) (slip op., at 1). Here, by contrast, the Court has ambushed Congress with an utterly unprecedented (and thus unforeseeable) maneuver. Congressional silence, “while permitting an inference that Congress intended to apply ordinary back- ground” principles, “cannot show that it intended to apply an unusual modification of those rules.” Meyer v. Holley, 537 U.S. 280, 286 (2003).2 Because there is no plausible —————— 2 The Court concedes that “Congress legislates against the backdrop of existing law,” but protests that “[a]t the time of AEDPA’s enactment, multiple decisions of this Court applied the miscarriage of justice exception to overcome various threshold barriers to relief.” Ante, at 14, n. 3. That is right, of course, but only at an uninformative level of generality; the relevant inquiry is, to which barriers had we applied the exception? Whistling past the graveyard, the Court refuses to engage Cite as: 569 U. S. ____ (2013) 11 SCALIA, J., dissenting basis for inferring that Congress intended or could have anticipated this exception, its adoption here amounts to a pure judicial override of the statute Congress enacted. “It is wrong for us to reshape” AEDPA “on the very lathe of judge-made habeas jurisprudence it was designed to re- pair.” Stewart v. Martinez-Villareal, 523 U.S. 637, 647 (1998) (SCALIA, J., dissenting). * * * “It would be marvellously inspiring to be able to boast that we have a criminal-justice system in which a claim of ‘actual innocence’ will always be heard, no matter how late it is brought forward, and no matter how much the failure to bring it forward at the proper time is the defendant’s own fault.” Bousley, 523 U. S., at 635 (SCALIA, J., dissent- ing). I suspect it is this vision of perfect justice through abundant procedure that impels the Court today. Of course, “we do not have such a system, and no society unwilling to devote unlimited resources to repetitive crim- inal litigation ever could.” Ibid. Until today, a district court could dismiss an untimely petition without delving into the underlying facts. From now on, each time an untimely petitioner claims innocence—and how many prisoners asking to be let out of jail do not?—the district court will be obligated to expend limited judicial resources wading into the murky merits of the petitioner’s innocence claim. The Court notes “that tenable actual-innocence gateway pleas are rare.” Ante, at 2. That discouraging reality, intended as reassurance, is in truth “the condem- nation of the procedure which has encouraged frivolous cases.” Brown, 344 U. S., at 537 (Jackson, J., concurring in result). It has now been 60 years since Brown v. Allen, in which we struck the Faustian bargain that traded the simple —————— with this question. 12 MCQUIGGIN v. PERKINS SCALIA, J., dissenting elegance of the common-law writ of habeas corpus for federal-court power to probe the substantive merits of state-court convictions. Even after AEDPA’s pass through the Augean stables, no one in a position to observe the functioning of our byzantine federal-habeas system can believe it an efficient device for separating the truly de- serving from the multitude of prisoners pressing false claims. “[F]loods of stale, frivolous and repetitious peti- tions inundate the docket of the lower courts and swell our own. . . . It must prejudice the occasional meritorious applicant to be buried in a flood of worthless ones.” Id., at 536–537. The “inundation” that Justice Jackson lamented in 1953 “consisted of 541” federal habeas petitions filed by state prisoners. Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U. Chi. L. Rev. 142, 143 (1970). By 1969, that number had grown to 7,359. Ibid. In the year ending on September 30, 2012, 15,929 such petitions were filed. Administrative Office of the United States Courts, Judicial Business of the United States Courts 3 (Sept. 30, 2012) (Table C–2). Today’s deci- sion piles yet more dead weight onto a postconviction habeas system already creaking at its rusted joints. I respectfully dissent	The Antiterrorism and Effective Death Penalty Act of 19 (AEDPA) provides that a “1-year period of limitation shall apply” to a state prisoner’s application for a writ of habeas corpus in federal court. 28 U.S. C. The gaping hole in today’s opinion for the Court is its failure to answer the crucial question upon which all else depends: What is the source of the Court’s power to fash- ion what it concedes is an “exception” to this clear statu- tory command? That question is unanswered because there is no an- swer. This Court has no such power, and not one of the cases cited by the opinion says otherwise. The Constitu- tion vests legislative power only in Congress, which never enacted the exception the Court creates today. That in- convenient truth resolves this case. I A “Actual innocence” has, until today, been an exception only to judge-made, prudential barriers to habeas relief, or as a means of channeling judges’ statutorily conferred discretion not to apply a procedural bar. Never before 2 MCQUIGGIN v. PERKINS SCALIA, J., dissenting have we applied the exception to circumvent a categorical statutory bar to relief. We have not done so because we have no power to do so. Where Congress has erected a constitutionally valid barrier to habeas relief, a court cannot decline to give it effect. efore AEDPA, the Supreme Court had developed an array of doctrines, see, e.g., Wainwright v. Sykes, 433 U.S. 72, 87 (1977) (procedural default); v. Zant, 499 U.S. 467, 489 (1991) (abuse of the writ), to limit the ha- beas practice that it had radically expanded in the early or mid-20th century to include review of the merits of convic- tion and not merely jurisdiction of the convicting court, see ); (Jackson, J., concurring in result); ator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 483–499 (13). For example, the doctrine of procedural default holds that a state prisoner’s default of his federal claims “in state court pursuant to an independent and adequate state procedural rule” bars federal habeas re- view of those claims. U.S. 722, 750 (1991). That doctrine is not a statutory or ju- risdictional command; rather, it is a “prudential” rule “grounded in ‘considerations of comity and concerns for the orderly administration of criminal justice.’ ” Dretke v. Haley, ). And what courts have created, courts can modify. One judge-made exception to procedural default allows a peti- tioner to proceed where he can demonstrate “cause” for the default and “prejudice.” See As relevant here, we have also expressed a willingness to excuse a petitioner’s default, even absent a showing of cause, “where a constitutional violation has probably resulted in the conviction of one who is actually innocent.” Cite as: 569 U. S. (2013) 3 SCALIA, J., dissenting ; see Schlup v. Delo, ; v. ell, 547 U.S. 518, 536–537 (2006). There is nothing inherently inappropriate (as opposed to merely unwise) about judge-created exceptions to judge- made barriers to relief. Procedural default, for example, raises “no question of a federal district court’s power to entertain an application for a writ of habeas corpus.” Where a petitioner would, but for a judge-made doctrine like procedural default, have a good habeas claim, it offends no command of Congress’s for a federal court to consider the petition. ut that free-and- easy approach has no place where a statutory bar to habeas relief is at issue. “[T]he power to award the writ by any of the courts of the United States, must be given by writ- ten law,” Ex parte ollman, (Mar- shall, C. J.), and “judgments about the proper scope of the writ are ‘normally for Congress to make,’ ” Felker v. Turpin, ). One would have thought it too obvious to mention that this Court is duty bound to enforce AEDPA, not amend it. ecause we have no “equitable” power to discard statu- tory barriers to habeas relief, we cannot simply extend judge-made exceptions to judge-made barriers into the statutory realm. The Court’s insupportable leap from judge-made procedural bars to all procedural bars, includ- ing statutory bars, does all the work in its opinion—and there is not a whit of precedential support for it. McCles- key v. Zant applied a “miscarriage of justice” exception to the judge-made abuse-of-the-writ doc 499 U. S., at 487–489, 495. Thompson and Murray v. Car- rier applied it to the judge-made procedural-default doc- 501 U. S., ; 477 U. S., at Keeney v. 4 applied it to a variant of procedural default: a state prisoner’s failure adequately to develop material facts in state court. Kuhlmann v. Wilson, a plurality opinion, ap- plied it to a statute that merely said lower federal courts “need not” entertain successive petitions, thus leaving them with “discretion to entertain successive petitions under some circumstances.” (emphasis added). Not one of the cases on which the Court relies today supports the extraordinary premise that courts can create out of whole cloth an exception to a statutory bar to relief. The opinion for the Court also trots out post-AEDPA cases to prove the irrelevant point that “[t]he miscarriage of justice exception survived AEDPA’s passage.” Ante, What it ignores, yet again, is that after AEDPA’s passage, as before, the exception applied only to nonstatu- tory obstacles to relief. ousley v. United States and v. ell were applications of the judge-made doctrine of procedural default. See ousley, ; (Stevens, J., concurring in part and dissenting in part) (“I agree with the Court’s central hold- ing that none of its judge-made rules foreclose peti- tioner’s collateral attack” (emphasis added)); at 630 (SCALIA, J., dissenting); a non- AEDPA case, involved the courts of appeals’ “inherent power to recall their mandates, subject to review for an abuse of discretion,” ; it stands only for the proposition that the miscarriage-of-justice exception is an appropriate “ ‘means of channeling’ ” that discretion, at 559 (quoting at ). The Court’s opinion, in its way, acknowledges the dearth of precedential support for its holding. “Prior to AEDPA,” it concedes, “this Court had not ruled that a credible claim of actual innocence could supersede a federal statute of Cite as: 569 U. S. (2013) 5 SCALIA, J., dissenting limitations.” Ante, at 13, n. 2. Its explanation for this lack of precedent is that before AEDPA, “petitions for federal habeas relief were not governed by any statute of limita- tions.” That is true but utterly unprobative. There are many statutory bars to relief other than statutes of limitations, and we had never (and before today, have never) created an actual-innocence exception to any of them. The reason why is obvious: Judicially amending a validly enacted statute in this way is a flagrant breach of the separation of powers. II The Court has no qualms about transgressing such a basic principle. It does not even attempt to cloak its act of judicial legislation in the pretense that it is merely con- struing the statute; indeed, it freely admits that its opin- ion recognizes an “exception” that the statute does not contain. Ante, at 7. And it dismisses, with a series of transparent non sequiturs, Michigan’s overwhelming textual argument that the statute provides no such excep- tion and envisions none. The key textual point is that two provisions of working in tandem, provide a comprehensive path to relief for an innocent prisoner who has newly discovered evi- dence that supports his constitutional claim. Section 2244(d)(1)(D) gives him a fresh year in which to file, start- ing on “the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence,” while lifts the bar on second or successive petitions. Congress clearly anticipated the scenario of a habeas petitioner with a credible innocence claim and addressed it by crafting an exception (and an exception, by the way, more restrictive than the one that pleases the Court today). One cannot assume that Congress left room for other, judge-made applications of the actual-innocence exception, any more 6 MCQUIGGIN v. PERKINS SCALIA, J., dissenting than one would add another gear to a Swiss watch on the theory that the watchmaker surely would have included it if he had thought of it. In both cases, the intricate crafts- manship tells us that the designer arranged things just as he wanted them. The Court’s feeble rejoinder is that its (judicially in- vented) version of the “actual innocence” exception applies only to a “severely confined category” of cases. Ante, at 10. Since cases qualifying for the actual-innocence exception will be rare, it explains, the statutory path for innocent petitioners will not “be rendered superfluous.” That is no answer at all. That the Court’s exception would not entirely frustrate Congress’s design does not weaken the force of the State’s argument that Congress addressed the issue comprehensively and chose to exclude dilatory prisoners like respondent. y the Court’s logic, a statute banning littering could simply be deemed to contain an exception for cigarette butts; after all, the statute as thus amended would still cover something. That is not how a court respectful of the separation of powers should inter- pret statutes. Even more bizarre is the Court’s concern that applying AEDPA’s statute of limitations without recognizing an atextual actual-innocence exception would “accord greater force to a federal deadline than to a similarly designed state deadline.” Ante, at 9; see also ante, at 13, n. 2. The Court terms that outcome “passing strange,” ante, at 9, but it is not strange at all. Only federal statutes of limita- tions bind federal habeas courts with the force of law; a state statute of limitations is given effect on federal habeas review only by virtue of the judge-made doctrine of procedural default.1 See –731. —————— 1 If the Court is really troubled by this disparity, there is a way to resolve it that is consistent with the separation of powers: Revise our judge-made procedural-default doctrine to give absolute preclusive Cite as: 569 U. S. (2013) 7 SCALIA, J., dissenting With its eye firmly fixed on something it likes—a shiny new exception to a statute unloved in the best circles—the Court overlooks this basic distinction, which would not trouble a second-year law student armed with a copy of Hart & Wechsler. The Court simply ignores basic legal principles where they pose an obstacle to its policy-driven, free-form improvisation. The Court’s statutory-construction blooper reel does not end there. Congress’s express inclusion of innocence- based exceptions in two neighboring provisions of the Act confirms, one would think, that there is no actual- innocence exception to Section 2244(b)(2)(), as already noted, lifts the bar on claims presented in second or successive petitions where “the factual predicate for the claim could not have been discovered previously through due diligence” and “the facts underlying the claim would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found” the petitioner guilty. Section 2254(e)(2) permits a district court to hold an evidentiary hearing where a diligent state prisoner’s claim relies on new facts that “would be sufficient to estab- lish by clear and convincing evidence that but for constitu- tional error, no reasonable factfinder would have found” him guilty. Ordinarily, we would draw from the express enumeration of these two actual-innocence exceptions the inference that no others were intended. The Court’s twisting path to the contrary conclusion is not easy to follow, but I will try. In the Court’s view, the key fact here is that these two provisions of AEDPA codi- fied what had previously been judge-made barriers to relief and applied to them a stricter actual-innocence standard than the courts had been applying. See ante, at 11–12. From this, the Court reasons that Congress made —————— effect to state statutes of limitations. 8 MCQUIGGIN v. PERKINS SCALIA, J., dissenting a conscious choice not also to apply the more restrictive actual-innocence standard to the statute of limitations. Ergo, the Court concludes, we are free to apply the more lenient version of the actual-innocence exception. Ante, at 12–13. That clever account ignores the background against which Congress legislated. Of course Congress did not “constrain” application of the actual-innocence excep- tion to the statute of limitations. It felt no need to do so, because it had no reason whatsoever to suspect that any version of the exception would apply to the statute of limitations. The collective efforts of respondent and the majority have turned up not a single instance where this Court has applied the actual-innocence exception to any statutory barrier to habeas relief, much less to a statute of limitations. See Part I–, What has been said of equitable tolling applies in spades to non-tolling judi- cial inventions: “Congress cannot intend to incorporate, by silence, various forms of equitable tolling that were not generally recognized in the common law at the time of enactment.” ain & Colella, Interpreting Federal Statutes of Limitations, The only conceivable relevance of § and 2254(e)(2) is (1) as we have said, that no other actual- innocence exception was intended, and (2) that if Congress had anticipated that this Court would amend to add an actual-innocence exception (which it surely did not), it would have desired the more stringent formulation and not the expansive formulation applied today, which it specifically rejected for those other provisions. III Three years ago, in Holland v. Florida, 560 U. S. (2010), we held that AEDPA’s statute of limitations is subject to equitable tolling. That holding offers no support for importing a novel actual-innocence exception. Equit- able tolling—extending the deadline for a filing because of Cite as: 569 U. S. (2013) 9 SCALIA, J., dissenting an event or circumstance that deprives the filer, through no fault of his own, of the full period accorded by the statute—seeks to vindicate what might be considered the genuine intent of the statute. y contrast, suspending the statute because of a separate policy that the court believes should trump it (“actual innocence”) is a blatant over- ruling. Moreover, the doctrine of equitable tolling is cen- turies old, and dates from a time when the separation of the legislative and judicial powers was incomplete. See, e.g., ree v. Holbech, ; South-Sea Co. v. Wymondsell, 24 E. R. 1004, 3 P. Wms. 143, 144 (1732); ooth v. Warrington, 2 E. R. 111, 112– 113, 4 ro. P. C. 163, 165–166 (1714); see also Holmberg v. Armbrecht, (16); Exploration Co. v. United States, ; ailey v. Glover, ; Sherwood v. Sutton, 21 F. Cas. 1303, 1304–1305 (No. 12,782) (CCNH 1828) (Story, J.); As Profes- sor has explained, until the Glorious Revolution of 1688, the Crown retained “pretensions to independent legislative authority, and English judges continued to serve as the Crown’s agents, in theory and practice a component of the executive. Given these conditions, which distinguish the old English from the American constitu- tional context, it is not surprising to find a similarly indis- tinct line between appropriate legislative and judicial functions in matters of interpretation.” Textual- ism and the Equity of the Statute, 36–37 (2001) (footnote omitted). Thus, the doctrine of the equity of the statute, of which equitable tolling was an example, was reflected in lackstone’s Commentaries “two-thirds of the way through the eighteenth century.” American courts’ later adoption of the English equitable- tolling practice need not be regarded as a violation of the separation of powers, but can be seen as a reasonable 10 MCQUIGGIN v. PERKINS SCALIA, J., dissenting assumption of genuine legislative intent. Colonial legisla- tures would have assumed that equitable tolling would attend any statute of limitations they adopted. In any case, equitable tolling surely represents such a reasonable assumption today. “It is hornbook law that limitations periods are customarily subject to equitable tolling, unless tolling would be inconsistent with the text of the relevant statute. Congress must be presumed to draft limitations periods in light of this background principle.” Young v. United States, (internal quota- tion marks and citations omitted); see What Divides Textualists from Purposivists? 106 Colum. L. Rev. 70, 81–82, and n. 42 (2006). Congress, being well aware of the longstanding background presumption of equitable tolling, “may provide otherwise if it wishes to do so.” (1990). The majority and dissenting opinions in Holland disputed whether that presumption had been overcome, but all agreed that the presumption existed and was a legitimate tool for construing statutes of limitations. See Holland, 560 U. S., at (slip op., at 13); at (SCALIA, J., dissenting) (slip op., at 1). Here, by contrast, the Court has ambushed Congress with an utterly unprecedented (and thus unforeseeable) maneuver. Congressional silence, “while permitting an inference that Congress intended to apply ordinary back- ground” principles, “cannot show that it intended to apply an unusual modification of those rules.”2 ecause there is no plausible —————— 2 The Court concedes that “Congress legislates against the backdrop of existing law,” but protests that “[a]t the time of AEDPA’s enactment, multiple decisions of this Court applied the miscarriage of justice exception to overcome various threshold barriers to relief.” Ante, at 14, n. 3. That is right, of course, but only at an uninformative level of generality; the relevant inquiry is, to which barriers had we applied the exception? Whistling past the graveyard, the Court refuses to engage Cite as: 569 U. S. (2013) 11 SCALIA, J., dissenting basis for inferring that Congress intended or could have anticipated this exception, its adoption here amounts to a pure judicial override of the statute Congress enacted. “It is wrong for us to reshape” AEDPA “on the very lathe of judge-made habeas jurisprudence it was designed to re- pair.” (SCALIA, J., dissenting). * * * “It would be marvellously inspiring to be able to boast that we have a criminal-justice system in which a claim of ‘actual innocence’ will always be heard, no matter how late it is brought forward, and no matter how much the failure to bring it forward at the proper time is the defendant’s own fault.” ousley, (SCALIA, J., dissent- ing). I suspect it is this vision of perfect justice through abundant procedure that impels the Court today. Of course, “we do not have such a system, and no society unwilling to devote unlimited resources to repetitive crim- inal litigation ever could.” Until today, a district court could dismiss an untimely petition without delving into the underlying facts. From now on, each time an untimely petitioner claims innocence—and how many prisoners asking to be let out of jail do not?—the district court will be obligated to expend limited judicial resources wading into the murky merits of the petitioner’s innocence claim. The Court notes “that tenable actual-innocence gateway pleas are rare.” Ante, at 2. That discouraging reality, intended as reassurance, is in truth “the condem- nation of the procedure which has encouraged frivolous cases.” rown, (Jackson, J., concurring in result). It has now been 60 years since rown v. Allen, in which we struck the Faustian bargain that traded the simple —————— with this question. 12 MCQUIGGIN v. PERKINS SCALIA, J., dissenting elegance of the common-law writ of habeas corpus for federal-court power to probe the substantive merits of state-court convictions. Even after AEDPA’s pass through the Augean stables, no one in a position to observe the functioning of our byzantine federal-habeas system can believe it an efficient device for separating the truly de- serving from the multitude of prisoners pressing false claims. “[F]loods of stale, frivolous and repetitious peti- tions inundate the docket of the lower courts and swell our own. It must prejudice the occasional meritorious applicant to be buried in a flood of worthless ones.” at 536–537. The “inundation” that Justice Jackson lamented in 1953 “consisted of 541” federal habeas petitions filed by state prisoners. Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 143 (1970). y 19, that number had grown to 7,359. In the year ending on September 30, 2012, 15,929 such petitions were filed. Administrative Office of the United States Courts, Judicial usiness of the United States Courts 3 (Sept. 30, 2012) (Table C–2). Today’s deci- sion piles yet more dead weight onto a postconviction habeas system already creaking at its rusted joints. I respectfully dissent	2,091
Justice Rehnquist	majority	false	United States v. Hyde	1997-05-27	null	https://www.courtlistener.com/opinion/118114/united-states-v-hyde/	https://www.courtlistener.com/api/rest/v3/clusters/118114/	1,997	1996-058	1	9	0	Rule 32(e) of the Federal Rules of Criminal Procedure states that a district court may allow a defendant to withdraw his guilty plea before he is sentenced "if the defendant shows any fair and just reason." After the defendant in this case pleaded guilty, pursuant to a plea agreement, the District Court accepted his plea but deferred decision on whether to accept the plea agreement. The defendant then sought to withdraw his plea. We hold that in such circumstances a defendant may not withdraw his plea unless he shows a "fair and just reason" under Rule 32(e). A federal grand jury indicted respondent Robert Hyde on eight counts of mail fraud, wire fraud, and other fraudrelated crimes. On the morning of his trial, respondent indicated his desire to enter plea negotiations with the Government. Those negotiations produced a plea agreement 672 in which respondent agreed to plead guilty to four of the counts. In exchange, the Government agreed to move to dismiss the remaining four counts and not to bring further charges against respondent for other allegedly fraudulent conduct. That afternoon, the parties appeared again before the District Court and submitted the plea agreement to the court, along with respondent's "application for permission to enter [a] plea of guilty." After placing respondent under oath, the court questioned him extensively to ensure that his plea was knowing and voluntary, and that he understood the consequences of pleading guilty, including the possibility of a maximum sentence of 30 years. The court asked respondent what he had done, and respondent admitted committing the crimes set out in the four counts. The court then asked the Government to set out what it was prepared to prove, and the Government did so. The court asked respondent whether he was pleading guilty because he was in fact guilty of the crimes set out in the four counts. Respondent said that he was. Finally, the court asked respondent how he pleaded to each count, and respondent stated "guilty." The District Court concluded that respondent was pleading guilty knowingly, voluntarily, and intelligently, and that there was a factual basis for the plea. The court therefore stated that it was accepting respondent's guilty plea. It also stated that it was deferring decision on whether to accept the plea agreement, pending completion of the presentence report. One month later, before sentencing and the District Court's decision about whether to accept the plea agreement, respondent filed a motion to withdraw his guilty plea. His motion alleged that he had pleaded guilty under duress from the Government and that his admissions to the District Court had in fact been false. After holding an evidentiary hearing, the court concluded that there was no evidence to support respondent's claim of duress, and that respondent 673 had not provided a "fair and just reason" for withdrawing his guilty plea, as required by Rule 32(e). The court therefore refused to let respondent withdraw his guilty plea. The court then accepted the plea agreement, entered judgment against respondent on the first four counts, dismissed the indictment's remaining four counts on the Government's motion, and sentenced respondent to a prison term of 2[1]20442 years. The Court of Appeals for the Ninth Circuit reversed, holding that respondent had an absolute right to withdraw his guilty plea before the District Court accepted the plea agreement. 92 F.3d 779, 781 (1996). The court reasoned as follows: First, before a district court has accepted a defendant's guilty plea, the defendant has an absolute right to withdraw that plea. Id., at 780 (citing United States v. Washman, 66 F.3d 210, 212-213 (CA9 1995)). Second, the guilty plea and the plea agreement are "`inextricably bound up together,' " such that the court's deferral of the decision whether to accept the plea agreement also constitutes an automatic deferral of its decision whether to accept the guilty plea, even if the court explicitly states that it is accepting the guilty plea. 92 F.3d, at 780 (quoting United States v. Cordova-Perez, 65 F.3d 1552, 1556 (CA9 1995)). Combining these two propositions, the Court of Appeals held that "[i]f the court defers acceptance of the plea or of the plea agreement, the defendant may withdraw his plea for any reason or for no reason, until the time that the court does accept both the plea and the agreement." 92 F.3d, at 781. The Courts of Appeals for the Fourth and Seventh Circuits have reached the opposite conclusion on this issue. United States v. Ewing, 957 F.2d 115, 118-119 (CA4 1992); United States v. Ellison, 798 F.2d 1102, 1106 (CA7 1986). We granted certiorari to resolve the conflict, 519 U.S. 1086 (1997), and now reverse. To understand why we hold that Rule 32(e) governs here, we must go back to Rule 11, the principal provision in the Federal Rules of Criminal Procedure dealing with the subject 674 of guilty pleas and plea agreements. The Court of Appeals equated acceptance of the guilty plea with acceptance of the plea agreement, and deferral of the plea agreement with deferral of the guilty plea. Nothing in the text of Rule 11 supports these conclusions. In fact, the text shows that the opposite is true: Guilty pleas can be accepted while plea agreements are deferred, and the acceptance of the two can be separated in time. The prerequisites to accepting a guilty plea are set out in subdivisions (c) and (d) of Rule 11. Subdivision (c) says: "Before accepting a plea of guilty . . . , the court must address the defendant personally in open court and inform the defendant of, and determine that the defendant understands," numerous consequences of pleading guilty. For example, the court must ensure the defendant understands the maximum possible penalty that he may face by pleading guilty, Rule 11(c)(1), and the important constitutional rights he is waiving, including the right to a trial, Rules 11(c)(3), (4). Subdivision (d) says: "The court shall not accept a plea of guilty . . . without first, by addressing the defendant personally in open court, determining that the plea is voluntary."[1] The opening words of these two subdivisions are important: Together, they speak of steps a district court must take "[b]efore accepting a plea of guilty," and without which it "shall not accept a plea of guilty." Based on this language, we conclude that once the court has taken these steps, it may, in its discretion, accept a defendant's guilty plea. The Court of Appeals would read an additional prerequisite into this list: A district court shall not accept a plea of guilty without first accepting the plea agreement. But that "prerequisite" is absent from the list set out in subdivisions (c) and (d), strongly suggesting that no such addition is warranted. 675 Subdivision (e), which covers plea agreements, also contradicts the Court of Appeals' holding. That subdivision divides plea agreements into three types, based on what the Government agrees to do: In type A agreements, the Government agrees to move for dismissal of other charges; in type B, it agrees to recommend (or not oppose the defendant's request for) a particular sentence; and in type C, it agrees that the defendant should receive a specific sentence. As to type A and type C agreements, the Rule states that "the court may accept or reject the agreement, or may defer its decision as to the acceptance or rejection until there has been an opportunity to consider the presentence report."[2] Rule 11(e)(2). The plea agreement in this case is a type A agreement: The Government agreed to move to dismiss four counts, did not agree to recommend a particular sentence, and did not agree that a specific sentence was the appropriate disposition. The District Court deferred its decision about whether to accept or reject the agreement. If the court had decided to reject the plea agreement, it would have turned to subdivision (e)(4) of Rule 11. That subdivision, a critical one for our purposes, provides: "If the court rejects the plea agreement, the court shall. . . advise the defendant personally . . . that the court is not bound by the plea agreement, afford the defendant the opportunity to then withdraw the plea, and advise the defendant that if the defendant persists in a guilty plea . . . the disposition of the case may be less favorable to the defendant than that contemplated by the plea agreement." Rule 11(e)(4) (emphasis added). 676 Thus, if the court rejects the agreement, the defendant can "then" withdraw his plea for any reason and does not have to comply with Rule 32(e)'s "fair and just reason" requirement. This provision implements the commonsense notion that a defendant can no longer be bound by an agreement that the court has refused to sanction. Under the Court of Appeals' holding, however, the defendant can withdraw his plea "for any reason or for no reason" even if the district court does not reject the plea agreement, but merely defers decision on it. Thus, for the Court of Appeals, the rejection of the plea agreement has no significance: Before rejection, the defendant is free to withdraw his plea; after rejection, the same is true. But the text of Rule 11(e)(4) gives the rejection of the agreement a great deal of significance. Only "then" is the defendant granted "the opportunity" to withdraw his plea. The necessary implication of this provision is that if the court has neither rejected nor accepted the agreement, the defendant is not granted "the opportunity to then withdraw" his plea. The Court of Appeals' holding contradicts this implication, and thus strips subdivision (e)(4) of any meaning. Not only is the Court of Appeals' holding contradicted by the very language of the Rules, it also debases the judicial proceeding at which a defendant pleads and the court accepts his plea. After the defendant has sworn in open court that he actually committed the crimes, after he has stated that he is pleading guilty because he is guilty, after the court has found a factual basis for the plea, and after the court has explicitly announced that it accepts the plea, the Court of Appeals would allow the defendant to withdraw his guilty plea simply on a lark. The Advisory Committee, in adding the "fair and just reason" standard to Rule 32(e) in 1983, explained why this cannot be so: "Given the great care with which pleas are taken under [the] revised Rule 11, there is no reason to view pleas so taken as merely `tentative,' subject to withdrawal before 677 sentence whenever the government cannot establish prejudice. `Were withdrawal automatic in every case where the defendant decided to alter his tactics and present his theory of the case to the jury, the guilty plea would become a mere gesture, a temporary and meaningless formality reversible at the defendant's whim. In fact, however, a guilty plea is no such trifle, but a "grave and solemn act," which is "accepted only with care and discernment."` " Advisory Committee's Notes on Fed. Rule Crim. Proc. 32, 18 U.S. C. App., p. 794 (quoting United States v. Barker, 514 F.2d 208, 221 (CADC 1975), in turn quoting Brady v. United States, 397 U.S. 742, 748 (1970)). We think the Court of Appeals' holding would degrade the otherwise serious act of pleading guilty into something akin to a move in a game of chess. The basis for the Court of Appeals' decision was its prior statement in Cordova-Perez that "[t]he plea agreement and the [guilty] plea are inextricably bound up together." 65 F.3d, at 1556 (internal quotation marks omitted). This statement, on its own, is not necessarily incorrect. The guilty plea and the plea agreement are "bound up together" in the sense that a rejection of the agreement simultaneously frees the defendant from his commitment to plead guilty. See Rule 11(e)(4). And since the guilty plea is but one side of the plea agreement, the plea is obviously not wholly independent of the agreement. But the Rules nowhere state that the guilty plea and the plea agreement must be treated identically. Instead, they explicitly envision a situation in which the defendant performs his side of the bargain (the guilty plea) before the Government is required to perform its side (here, the motion to dismiss four counts). If the court accepts the agreement and thus the Government's promised performance, then the contemplated agreement is complete and the defendant gets the benefit of his bargain. But if the court rejects the Government's 678 promised performance, then the agreement is terminated and the defendant has the right to back out of his promised performance (the guilty plea), just as a binding contractual duty may be extinguished by the nonoccurrence of a condition subsequent. See J. Calamari & J. Perillo, Law of Contracts § 11-7, p. 441 (3d ed. 1987); 3A A. Corbin, Corbin on Contracts § 628, p. 17 (1960).[3] If the Court of Appeals' holding were correct, it would also be difficult to see what purpose Rule 32(e) would serve. Since 1983, that Rule has provided: "If a motion to withdraw a plea of guilty . . . is made before sentence is imposed, the court may permit the plea to be withdrawn if the defendant shows any fair and just reason." Under the Court of Appeals' holding, the "fair and just reason" standard would only be applicable between the time that the plea agreement is accepted and the sentence is imposed. Since the decision whether to accept the plea agreement will often be deferred until the sentencing hearing, see Rule 11(e)(2); USSG § 6B1.1(c), at which time the presentence report will have been submitted to the parties, objected to, revised, and filed with the court, see Fed. Rule Crim. Proc. 32(b)(6), the decision whether to accept the plea agreement will often be made at the same time that the defendant is sentenced. This leaves little, if any, time in which the "fair and just 679 reason" standard would actually apply. We see no indication in the Rules to suggest that Rule 32(e) can be eviscerated in this manner, and the Court of Appeals did not point to one. Respondent defends this cramped understanding of Rule 32(e) by arguing that the "fair and just reason" standard was meant to apply only to "fully accepted" guilty pleas, as opposed to "conditionally accepted" pleasi. e., pleas that are accepted but later withdrawn under Rule 11(e)(4) if the plea agreement is rejected. He points out that the "fair and just reason" standard was derived from dictum in our pre-Rules opinion in Kercheval v. United States, 274 U.S. 220, 224 (1927), see Advisory Committee's Notes on Rule 32, 18 U.S. C. App., p. 794, and that Kercheval spoke of a guilty plea as a final, not a conditional, act, see 274 U.S., at 223 ("A plea of guilty differs in purpose and effect from a mere admission or an extra-judicial confession; it is itself a conviction. Like a verdict of a jury it is conclusive. More is not required; the court has nothing to do but give judgment and sentence"). He then argues that since the Rule 32(e) standard was derived from Kercheval, the Rule must also have incorporated the Kercheval view that a guilty plea is a final, unconditional act. Thus, since his guilty plea was conditioned on the District Court accepting the plea agreement, the Rule simply does not apply. We reject this somewhat tortuous argument. When the "fair and just reason" standard was added in 1983, the Rules already provided that the district court could defer decision on whether to accept the plea agreement, that it could then reject the agreement, and that the defendant would then be able to withdraw his guilty plea. Guilty pleas made pursuant to plea agreements were thus already subject to this sort of condition subsequent. Yet neither the new Rule 32(e) nor the Advisory Committee's Notes accompanying it attempted to draw a distinction between "fully accepted" and "conditionally accepted" guilty pleas. Instead, the Rule simply *680 says that the standard applies to motions to withdraw a guilty plea "made before sentence is imposed." Respondent's speculation that the Advisory Committee, this Court, and Congress had the Kercheval view of a guilty plea in mind when Rule 32(e) was amended in 1983 is thus contradicted by the Rules themselves. Respondent's only other substantial argument in defense of the Court of Appeals' holding relies on an interpretation of the Advisory Committee's Notes to Rule 32(b)(3). That Rule, concerning presentence reports, provides: "The report must not be submitted to the court or its contents disclosed to anyone unless the defendant has consented in writing, has pleaded guilty or nolo contendere, or has been found guilty." This Rule obviously does not deal at all with motions to withdraw guilty pleas, and any comments in the Advisory Committee's Notes to this Rule dealing with plea withdrawal could not alter the meaning of Rules 11 and 32(e) as we have construed them. The judgment of the Court of Appeals is therefore Reversed.	Rule 32(e) of the Federal Rules of Criminal Procedure states that a district court may allow a defendant to withdraw his guilty plea before he is sentenced "if the defendant shows any fair and just reason." After the defendant in this case pleaded guilty, pursuant to a plea agreement, the District Court accepted his plea but deferred decision on whether to accept the plea agreement. The defendant then sought to withdraw his We hold that in such circumstances a defendant may not withdraw his plea unless he shows a "fair and just reason" under Rule 32(e). A federal grand jury indicted respondent Robert Hyde on eight counts of mail fraud, wire fraud, and other fraudrelated crimes. On the morning of his trial, respondent indicated his desire to enter plea negotiations with the Government. Those negotiations produced a plea agreement 672 in which respondent agreed to plead guilty to four of the counts. In exchange, the Government agreed to move to dismiss the remaining four counts and not to bring further charges against respondent for other allegedly fraudulent conduct. That afternoon, the parties appeared again before the District Court and submitted the plea agreement to the court, along with respondent's "application for permission to enter [a] plea of guilty." After placing respondent under oath, the court questioned him extensively to ensure that his plea was knowing and voluntary, and that he understood the consequences of pleading guilty, including the possibility of a maximum sentence of 30 years. The court asked respondent what he had done, and respondent admitted committing the crimes set out in the four counts. The court then asked the Government to set out what it was prepared to prove, and the Government did so. The court asked respondent whether he was pleading guilty because he was in fact guilty of the crimes set out in the four counts. Respondent said that he was. Finally, the court asked respondent how he pleaded to each count, and respondent stated "guilty." The District Court concluded that respondent was pleading guilty knowingly, voluntarily, and intelligently, and that there was a factual basis for the The court therefore stated that it was accepting respondent's guilty It also stated that it was deferring decision on whether to accept the plea agreement, pending completion of the presentence report. One month later, before sentencing and the District Court's decision about whether to accept the plea agreement, respondent filed a motion to withdraw his guilty His motion alleged that he had pleaded guilty under duress from the Government and that his admissions to the District Court had in fact been false. After holding an evidentiary hearing, the court concluded that there was no evidence to support respondent's claim of duress, and that respondent 673 had not provided a "fair and just reason" for withdrawing his guilty plea, as required by Rule 32(e). The court therefore refused to let respondent withdraw his guilty The court then accepted the plea agreement, entered judgment against respondent on the first four counts, dismissed the indictment's remaining four counts on the Government's motion, and sentenced respondent to a prison term of 2[1]20442 years. The Court of Appeals for the Ninth Circuit reversed, holding that respondent had an absolute right to withdraw his guilty plea before the District Court accepted the plea agreement. The court reasoned as follows: First, before a district court has accepted a defendant's guilty plea, the defendant has an absolute right to withdraw that at 780 ). Second, the guilty plea and the plea agreement are "`inextricably bound up together,' " such that the court's deferral of the decision whether to accept the plea agreement also constitutes an automatic deferral of its decision whether to accept the guilty plea, even if the court explicitly states that it is accepting the guilty ). Combining these two propositions, the Court of Appeals held that "[i]f the court defers acceptance of the plea or of the plea agreement, the defendant may withdraw his plea for any reason or for no reason, until the time that the court does accept both the plea and the agreement." 92 F.3d, at The Courts of Appeals for the Fourth and Seventh Circuits have reached the opposite conclusion on this issue. United ; United We granted certiorari to resolve the conflict, and now reverse. To understand why we hold that Rule 32(e) governs here, we must go back to Rule 11, the principal provision in the Federal Rules of Criminal Procedure dealing with the subject 674 of guilty pleas and plea agreements. The Court of Appeals equated acceptance of the guilty plea with acceptance of the plea agreement, and deferral of the plea agreement with deferral of the guilty Nothing in the text of Rule 11 supports these conclusions. In fact, the text shows that the opposite is true: Guilty pleas can be accepted while plea agreements are deferred, and the acceptance of the two can be separated in time. The prerequisites to accepting a guilty plea are set out in subdivisions (c) and (d) of Rule 11. Subdivision (c) says: "Before accepting a plea of guilty the court must address the defendant personally in open court and inform the defendant of, and determine that the defendant understands," numerous consequences of pleading guilty. For example, the court must ensure the defendant understands the maximum possible penalty that he may face by pleading guilty, Rule 11(c)(1), and the important constitutional rights he is waiving, including the right to a trial, Rules 11(c)(3), (4). Subdivision (d) says: "The court shall not accept a plea of guilty without first, by addressing the defendant personally in open court, determining that the plea is voluntary."[1] The opening words of these two subdivisions are important: Together, they speak of steps a district court must take "[b]efore accepting a plea of guilty," and without which it "shall not accept a plea of guilty." Based on this language, we conclude that once the court has taken these steps, it may, in its discretion, accept a defendant's guilty The Court of Appeals would read an additional prerequisite into this list: A district court shall not accept a plea of guilty without first accepting the plea agreement. But that "prerequisite" is absent from the list set out in subdivisions (c) and (d), strongly suggesting that no such addition is warranted. 675 Subdivision (e), which covers plea agreements, also contradicts the Court of Appeals' holding. That subdivision divides plea agreements into three types, based on what the Government agrees to do: In type A agreements, the Government agrees to move for dismissal of other charges; in type B, it agrees to recommend (or not oppose the defendant's request for) a particular sentence; and in type C, it agrees that the defendant should receive a specific sentence. As to type A and type C agreements, the Rule states that "the court may accept or reject the agreement, or may defer its decision as to the acceptance or rejection until there has been an opportunity to consider the presentence report."[2] Rule 11(e)(2). The plea agreement in this case is a type A agreement: The Government agreed to move to dismiss four counts, did not agree to recommend a particular sentence, and did not agree that a specific sentence was the appropriate disposition. The District Court deferred its decision about whether to accept or reject the agreement. If the court had decided to reject the plea agreement, it would have turned to subdivision (e)(4) of Rule 11. That subdivision, a critical one for our purposes, provides: "If the court rejects the plea agreement, the court shall. advise the defendant personally that the court is not bound by the plea agreement, afford the defendant the opportunity to then withdraw the plea, and advise the defendant that if the defendant persists in a guilty plea the disposition of the case may be less favorable to the defendant than that contemplated by the plea agreement." Rule 11(e)(4) (emphasis added). 676 Thus, if the court rejects the agreement, the defendant can "then" withdraw his plea for any reason and does not have to comply with Rule 32(e)'s "fair and just reason" requirement. This provision implements the commonsense notion that a defendant can no longer be bound by an agreement that the court has refused to sanction. Under the Court of Appeals' holding, however, the defendant can withdraw his plea "for any reason or for no reason" even if the district court does not reject the plea agreement, but merely defers decision on it. Thus, for the Court of Appeals, the rejection of the plea agreement has no significance: Before rejection, the defendant is free to withdraw his plea; after rejection, the same is true. But the text of Rule 11(e)(4) gives the rejection of the agreement a great deal of significance. Only "then" is the defendant granted "the opportunity" to withdraw his The necessary implication of this provision is that if the court has neither rejected nor accepted the agreement, the defendant is not granted "the opportunity to then withdraw" his The Court of Appeals' holding contradicts this implication, and thus strips subdivision (e)(4) of any meaning. Not only is the Court of Appeals' holding contradicted by the very language of the Rules, it also debases the judicial proceeding at which a defendant pleads and the court accepts his After the defendant has sworn in open court that he actually committed the crimes, after he has stated that he is pleading guilty because he is guilty, after the court has found a factual basis for the plea, and after the court has explicitly announced that it accepts the plea, the Court of Appeals would allow the defendant to withdraw his guilty plea simply on a lark. The Advisory Committee, in adding the "fair and just reason" standard to Rule 32(e) in 1983, explained why this cannot be so: "Given the great care with which pleas are taken under [the] revised Rule 11, there is no reason to view pleas so taken as merely `tentative,' subject to withdrawal before 677 sentence whenever the government cannot establish prejudice. `Were withdrawal automatic in every case where the defendant decided to alter his tactics and present his theory of the case to the jury, the guilty plea would become a mere gesture, a temporary and meaningless formality reversible at the defendant's whim. In fact, however, a guilty plea is no such trifle, but a "grave and solemn act," which is "accepted only with care and discernment."` " Advisory Committee's Notes on Fed. Rule Crim. Proc. 32, 18 U.S. C. App., p. 794 in turn quoting ). We think the Court of Appeals' holding would degrade the otherwise serious act of pleading guilty into something akin to a move in a game of chess. The basis for the Court of Appeals' decision was its prior statement in Cordova-Perez that "[t]he plea agreement and the [guilty] plea are inextricably bound up together." 65 F.3d, at This statement, on its own, is not necessarily incorrect. The guilty plea and the plea agreement are "bound up together" in the sense that a rejection of the agreement simultaneously frees the defendant from his commitment to plead guilty. See Rule 11(e)(4). And since the guilty plea is but one side of the plea agreement, the plea is obviously not wholly independent of the agreement. But the Rules nowhere state that the guilty plea and the plea agreement must be treated identically. Instead, they explicitly envision a situation in which the defendant performs his side of the bargain (the guilty plea) before the Government is required to perform its side (here, the motion to dismiss four counts). If the court accepts the agreement and thus the Government's promised performance, then the contemplated agreement is complete and the defendant gets the benefit of his bargain. But if the court rejects the Government's 678 promised performance, then the agreement is terminated and the defendant has the right to back out of his promised performance (the guilty plea), just as a binding contractual duty may be extinguished by the nonoccurrence of a condition subsequent. See J. Calamari & J. Perillo, Law of Contracts 11-7, p. 441 (3d ed. 1987); 3A A. Corbin, Corbin on Contracts 628, p. 17 (1960).[3] If the Court of Appeals' holding were correct, it would also be difficult to see what purpose Rule 32(e) would serve. Since 1983, that Rule has provided: "If a motion to withdraw a plea of guilty is made before sentence is imposed, the court may permit the plea to be withdrawn if the defendant shows any fair and just reason." Under the Court of Appeals' holding, the "fair and just reason" standard would only be applicable between the time that the plea agreement is accepted and the sentence is imposed. Since the decision whether to accept the plea agreement will often be deferred until the sentencing hearing, see Rule 11(e)(2); USSG 6B1.1(c), at which time the presentence report will have been submitted to the parties, objected to, revised, and filed with the court, see Fed. Rule Crim. Proc. 32(b)(6), the decision whether to accept the plea agreement will often be made at the same time that the defendant is sentenced. This leaves little, if any, time in which the "fair and just 679 reason" standard would actually apply. We see no indication in the Rules to suggest that Rule 32(e) can be eviscerated in this manner, and the Court of Appeals did not point to one. Respondent defends this cramped understanding of Rule 32(e) by arguing that the "fair and just reason" standard was meant to apply only to "fully accepted" guilty pleas, as opposed to "conditionally accepted" pleasi. e., pleas that are accepted but later withdrawn under Rule 11(e)(4) if the plea agreement is rejected. He points out that the "fair and just reason" standard was derived from dictum in our pre-Rules opinion in see Advisory Committee's Notes on Rule 32, 18 U.S. C. App., p. 794, and that Kercheval spoke of a guilty plea as a final, not a conditional, act, see He then argues that since the Rule 32(e) standard was derived from Kercheval, the Rule must also have incorporated the Kercheval view that a guilty plea is a final, unconditional act. Thus, since his guilty plea was conditioned on the District Court accepting the plea agreement, the Rule simply does not apply. We reject this somewhat tortuous argument. When the "fair and just reason" standard was added in 1983, the Rules already provided that the district court could defer decision on whether to accept the plea agreement, that it could then reject the agreement, and that the defendant would then be able to withdraw his guilty Guilty pleas made pursuant to plea agreements were thus already subject to this sort of condition subsequent. Yet neither the new Rule 32(e) nor the Advisory Committee's Notes accompanying it attempted to draw a distinction between "fully accepted" and "conditionally accepted" guilty pleas. Instead, the Rule simply *680 says that the standard applies to motions to withdraw a guilty plea "made before sentence is imposed." Respondent's speculation that the Advisory Committee, this Court, and Congress had the Kercheval view of a guilty plea in mind when Rule 32(e) was amended in 1983 is thus contradicted by the Rules themselves. Respondent's only other substantial argument in defense of the Court of Appeals' holding relies on an interpretation of the Advisory Committee's Notes to Rule 32(b)(3). That Rule, concerning presentence reports, provides: "The report must not be submitted to the court or its contents disclosed to anyone unless the defendant has consented in writing, has pleaded guilty or nolo contendere, or has been found guilty." This Rule obviously does not deal at all with motions to withdraw guilty pleas, and any comments in the Advisory Committee's Notes to this Rule dealing with plea withdrawal could not alter the meaning of Rules 11 and 32(e) as we have construed them. The judgment of the Court of Appeals is therefore Reversed.	2,093
Justice Kennedy	majority	false	POM Wonderful LLC v. Coca-Cola Co.	2014-06-12	null	https://www.courtlistener.com/opinion/2678133/pom-wonderful-llc-v-coca-cola-co/	https://www.courtlistener.com/api/rest/v3/clusters/2678133/	2,014	2013-057	2	8	0	POM Wonderful LLC makes and sells pomegranate juice products, including a pomegranate-blueberry juice blend. App. 23a. One of POM’s competitors is the Coca- Cola Company. Coca-Cola’s Minute Maid Division makes a juice blend sold with a label that, in describing the con- tents, displays the words “pomegranate blueberry” with far more prominence than other words on the label that show the juice to be a blend of five juices. In truth, the Coca-Cola product contains but 0.3% pomegranate juice and 0.2% blueberry juice. Alleging that the use of that label is deceptive and misleading, POM sued Coca-Cola under §43 of the Lan- ham Act. 60 Stat. 441, as amended, 15 U.S. C. §1125. That provision allows one competitor to sue another if it alleges unfair competition arising from false or misleading product descriptions. The Court of Appeals for the Ninth Circuit held that, in the realm of labeling for food and beverages, a Lanham Act claim like POM’s is precluded by a second federal statute. The second statute is the Federal Food, Drug, and Cosmetic Act (FDCA), which forbids the 2 POM WONDERFUL LLC v. COCA-COLA CO. Opinion of the Court misbranding of food, including by means of false or mis- leading labeling. §§301, 403, 52 Stat. 1042, 1047, as amended, 21 U.S. C. §§331, 343. The ruling that POM’s Lanham Act cause of action is precluded by the FDCA was incorrect. There is no statu- tory text or established interpretive principle to support the contention that the FDCA precludes Lanham Act suits like the one brought by POM in this case. Nothing in the text, history, or structure of the FDCA or the Lanham Act shows the congressional purpose or design to forbid these suits. Quite to the contrary, the FDCA and the Lanham Act complement each other in the federal regulation of misleading food and beverage labels. Competitors, in their own interest, may bring Lanham Act claims like POM’s that challenge food and beverage labels that are regulated by the FDCA. I A This case concerns the intersection and complementar- ity of these two federal laws. A proper beginning point is a description of the statutes. Congress enacted the Lanham Act nearly seven decades ago. See 60 Stat. 427 (1946). As the Court explained earlier this Term, it “requires no guesswork” to ascertain Congress’ intent regarding this federal law, for Congress included a “detailed statement of the statute’s purposes.” Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U. S. ___, ___ (2014) (slip op., at 12). Section 45 of the Lanham Act provides: “The intent of this chapter is to regulate commerce within the control of Congress by making actionable the deceptive and misleading use of marks in such commerce; to protect registered marks used in such commerce from interference by State, or territorial legislation; to protect persons engaged in such com- Cite as: 573 U. S. ____ (2014) 3 Opinion of the Court merce against unfair competition; to prevent fraud and deception in such commerce by the use of repro- ductions, copies, counterfeits, or colorable imitations of registered marks; and to provide rights and reme- dies stipulated by treaties and conventions respecting trademarks, trade names, and unfair competition en- tered into between the United States and foreign na- tions.” 15 U.S. C. §1127. The Lanham Act’s trademark provisions are the primary means of achieving these ends. But the Act also creates a federal remedy “that goes beyond trademark protection.” Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23, 29 (2003). The broader remedy is at issue here. The Lanham Act creates a cause of action for unfair competition through misleading advertising or labeling. Though in the end consumers also benefit from the Act’s proper enforcement, the cause of action is for competitors, not consumers. The term “competitor” is used in this opinion to indicate all those within the class of persons and entities protected by the Lanham Act. Competitors are within the class that may invoke the Lanham Act because they may suffer “an injury to a commercial interest in sales or business repu- tation proximately caused by [a] defendant’s misrepresen- tations.” Lexmark, supra, at ___ (slip op., at 22). The petitioner here asserts injury as a competitor. The cause of action the Act creates imposes civil liability on any person who “uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading descrip- tion of fact, or false or misleading representation of fact, which . . . misrepresents the nature, characteristics, quali- ties, or geographic origin of his or her or another person’s goods, services, or commercial activities.” 15 U.S. C. §1125(a)(1). As the Court held this Term, the private 4 POM WONDERFUL LLC v. COCA-COLA CO. Opinion of the Court remedy may be invoked only by those who “allege an injury to a commercial interest in reputation or sales. A consumer who is hoodwinked into purchasing a disap- pointing product may well have an injury-in-fact cogniza- ble under Article III, but he cannot invoke the protection of the Lanham Act.” Lexmark, 572 U. S., at ___ (slip op., at 13). This principle reflects the Lanham Act’s purpose of “ ‘protect[ing] persons engaged in [commerce within the control of Congress] against unfair competition.’ ” Id., at ___ (slip op., at 12). POM’s cause of action would be straightforward enough but for Coca-Cola’s contention that a separate federal statutory regime, the FDCA, al- lows it to use the label in question and in fact precludes the Lanham Act claim. So the FDCA is the second statute to be discussed. The FDCA statutory regime is designed primarily to protect the health and safety of the public at large. See 62 Cases of Jam v. United States, 340 U.S. 593, 596 (1951); FDCA, §401, 52 Stat. 1046, 21 U.S. C. §341 (agency may issue certain regulations to “promote honesty and fair dealing in the interest of consumers”). The FDCA prohibits the misbranding of food and drink. 21 U.S. C. §§321(f), 331. A food or drink is deemed misbranded if, inter alia, “its labeling is false or misleading,” §343(a), information re- quired to appear on its label “is not prominently placed thereon,” §343(f), or a label does not bear “the common or usual name of the food, if any there be,” §343(i). To im- plement these provisions, the Food and Drug Administra- tion (FDA) promulgated regulations regarding food and beverage labeling, including the labeling of mixes of dif- ferent types of juice into one juice blend. See 21 CFR §102.33 (2013). One provision of those regulations is particularly relevant to this case: If a juice blend does not name all the juices it contains and mentions only juices that are not predominant in the blend, then it must either declare the percentage content of the named juice or Cite as: 573 U. S. ____ (2014) 5 Opinion of the Court “[i]ndicate that the named juice is present as a flavor or flavoring,” e.g., “raspberry and cranberry flavored juice drink.” §102.33(d). The Government represents that the FDA does not preapprove juice labels under these regula- tions. See Brief for United States as Amicus Curiae in Opposition 16. That contrasts with the FDA’s regulation of other types of labels, such as drug labels, see 21 U.S. C. §355(d), and is consistent with the less extensive role the FDA plays in the regulation of food than in the regulation of drugs. Unlike the Lanham Act, which relies in substantial part for its enforcement on private suits brought by injured competitors, the FDCA and its regulations provide the United States with nearly exclusive enforcement author- ity, including the authority to seek criminal sanctions in some circumstances. 21 U.S. C. §§333(a), 337. Private parties may not bring enforcement suits. §337. Also unlike the Lanham Act, the FDCA contains a provision pre-empting certain state laws on misbranding. That provision, which Congress added to the FDCA in the Nutrition Labeling and Education Act of 1990, §6, 104 Stat. 2362–2364, forecloses a “State or political subdivi- sion of a State” from establishing requirements that are of the type but “not identical to” the requirements in some of the misbranding provisions of the FDCA. 21 U.S. C. §343–1(a). It does not address, or refer to, other federal statutes or the preclusion thereof. B POM Wonderful LLC is a grower of pomegranates and a distributor of pomegranate juices. Through its POM Wonderful brand, POM produces, markets, and sells a variety of pomegranate products, including a pomegranate- blueberry juice blend. App. 23a. POM competes in the pomegranate-blueberry juice market with the Coca-Cola Company. Coca-Cola, under 6 POM WONDERFUL LLC v. COCA-COLA CO. Opinion of the Court its Minute Maid brand, created a juice blend containing 99.4% apple and grape juices, 0.3% pomegranate juice, 0.2% blueberry juice, and 0.1% raspberry juice. Id., at 38a; Brief for Respondent 8. Despite the minuscule amount of pomegranate and blueberry juices in the blend, the front label of the Coca-Cola product displays the words “pomegranate blueberry” in all capital letters, on two separate lines. App. 38a. Below those words, Coca-Cola placed the phrase “flavored blend of 5 juices” in much smaller type. Ibid. And below that phrase, in still smaller type, were the words “from concentrate with added ingre- dients”—and, with a line break before the final phrase— “and other natural flavors.” Ibid. The product’s front label also displays a vignette of blueberries, grapes, and raspberries in front of a halved pomegranate and a halved apple. Ibid. Claiming that Coca-Cola’s label tricks and deceives consumers, all to POM’s injury as a competitor, POM brought suit under the Lanham Act. POM alleged that the name, label, marketing, and advertising of Coca-Cola’s juice blend mislead consumers into believing the product consists predominantly of pomegranate and blueberry juice when it in fact consists predominantly of less expen- sive apple and grape juices. Id., at 27a. That confusion, POM complained, causes it to lose sales. Id., at 28a. POM sought damages and injunctive relief. Id., at 32a–33a. The District Court granted partial summary judgment to Coca-Cola on POM’s Lanham Act claim, ruling that the FDCA and its regulations preclude challenges to the name and label of Coca-Cola’s juice blend. The District Court reasoned that in the juice blend regulations the “FDA has directly spoken on the issues that form the basis of Pom’s Lanham Act claim against the naming and labeling of ” Coca-Cola’s product, but has not prohibited any, and indeed expressly has permitted some, aspects of Coca- Cola’s label. 727 F. Supp. 2d 849, 871–873 (CD Cal. 2010). Cite as: 573 U. S. ____ (2014) 7 Opinion of the Court The Court of Appeals for the Ninth Circuit affirmed in relevant part. Like the District Court, the Court of Ap- peals reasoned that Congress decided “to entrust matters of juice beverage labeling to the FDA”; the FDA has prom- ulgated “comprehensive regulation of that labeling”; and the FDA “apparently” has not imposed the requirements on Coca-Cola’s label that are sought by POM. 679 F.3d 1170, 1178 (2012). “[U]nder [Circuit] precedent,” the Court of Appeals explained, “for a court to act when the FDA has not—despite regulating extensively in this area— would risk undercutting the FDA’s expert judgments and authority.” Id., at 1177. For these reasons, and “[o]ut of respect for the statutory and regulatory scheme,” the Court of Appeals barred POM’s Lanham Act claim. Id., at 1178. II A This Court granted certiorari to consider whether a private party may bring a Lanham Act claim challenging a food label that is regulated by the FDCA. 571 U. S. ___ (2014). The answer to that question is based on the fol- lowing premises. First, this is not a pre-emption case. In pre-emption cases, the question is whether state law is pre-empted by a federal statute, or in some instances, a federal agency action. See Wyeth v. Levine, 555 U.S. 555, 563 (2009). This case, however, concerns the alleged preclusion of a cause of action under one federal statute by the provisions of another federal statute. So the state-federal balance does not frame the inquiry. Because this is a preclusion case, any “presumption against pre-emption,” id., at 565, n. 3, has no force. In addition, the preclusion analysis is not governed by the Court’s complex categorization of the types of pre-emption. See Crosby v. National Foreign Trade Council, 530 U.S. 363, 372–373 (2000). Although 8 POM WONDERFUL LLC v. COCA-COLA CO. Opinion of the Court the Court’s pre-emption precedent does not govern preclu- sion analysis in this case, its principles are instructive insofar as they are designed to assess the interaction of laws that bear on the same subject. Second, this is a statutory interpretation case and the Court relies on traditional rules of statutory interpreta- tion. That does not change because the case involves multiple federal statutes. See FDA v. Brown & William- son Tobacco Corp., 529 U.S. 120, 137–139 (2000). Nor does it change because an agency is involved. See ibid. Analysis of the statutory text, aided by established princi- ples of interpretation, controls. See Chickasaw Nation v. United States, 534 U.S. 84, 94 (2001). A principle of interpretation is “often countered, of course, by some maxim pointing in a different direction.” Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 115 (2001). It is thus unsurprising that in this case a thresh- old dispute has arisen as to which of two competing max- ims establishes the proper framework for decision. POM argues that this case concerns whether one statute, the FDCA as amended, is an “implied repeal” in part of an- other statute, i.e., the Lanham Act. See, e.g., Carcieri v. Salazar, 555 U.S. 379, 395 (2009). POM contends that in such cases courts must give full effect to both statutes unless they are in “irreconcilable conflict,” see ibid., and that this high standard is not satisfied here. Coca-Cola resists this canon and its high standard. Coca-Cola argues that the case concerns whether a more specific law, the FDCA, clarifies or narrows the scope of a more general law, the Lanham Act. See, e.g., United States v. Fausto, 484 U.S. 439, 453 (1988); Brief for Respondent 18. The Court’s task, it claims, is to “reconcil[e]” the laws, ibid., and it says the best reconciliation is that the more specific provisions of the FDCA bar certain causes of action au- thorized in a general manner by the Lanham Act. The Court does not need to resolve this dispute. Even Cite as: 573 U. S. ____ (2014) 9 Opinion of the Court assuming that Coca-Cola is correct that the Court’s task is to reconcile or harmonize the statutes and not, as POM urges, to enforce both statutes in full unless there is a genuinely irreconcilable conflict, Coca-Cola is incorrect that the best way to harmonize the statutes is to bar POM’s Lanham Act claim. B Beginning with the text of the two statutes, it must be observed that neither the Lanham Act nor the FDCA, in express terms, forbids or limits Lanham Act claims chal- lenging labels that are regulated by the FDCA. By its terms, the Lanham Act subjects to suit any person who “misrepresents the nature, characteristics, qualities, or geographic origin” of goods or services. 15 U.S. C. §1125(a). This comprehensive imposition of liability ex- tends, by its own terms, to misrepresentations on labels, including food and beverage labels. No other provision in the Lanham Act limits that understanding or purports to govern the relevant interaction between the Lanham Act and the FDCA. And the FDCA, by its terms, does not preclude Lanham Act suits. In consequence, food and beverage labels regulated by the FDCA are not, under the terms of either statute, off limits to Lanham Act claims. No textual provision in either statute discloses a purpose to bar unfair competition claims like POM’s. This absence is of special significance because the Lan- ham Act and the FDCA have coexisted since the passage of the Lanham Act in 1946. 60 Stat. 427 (1946); ch. 675, 52 Stat. 1040 (1938). If Congress had concluded, in light of experience, that Lanham Act suits could interfere with the FDCA, it might well have enacted a provision address- ing the issue during these 70 years. See Wyeth, supra, at 574 (“If Congress thought state-law suits posed an obsta- cle to its objectives, it surely would have enacted an ex- press pre-emption provision at some point during the 10 POM WONDERFUL LLC v. COCA-COLA CO. Opinion of the Court FDCA’s 70-year history”). Congress enacted amendments to the FDCA and the Lanham Act, see, e.g., Nutrition Labeling and Education Act of 1990, 104 Stat. 2353; Trademark Law Revision Act of 1988, §132, 102 Stat. 3946, including an amendment that added to the FDCA an express pre-emption provision with respect to state laws addressing food and beverage misbranding, §6, 104 Stat. 2362. Yet Congress did not enact a provision addressing the preclusion of other federal laws that might bear on food and beverage labeling. This is “powerful evidence that Congress did not intend FDA oversight to be the exclusive means” of ensuring proper food and beverage labeling. See Wyeth, 555 U.S., at 575. Perhaps the closest the statutes come to addressing the preclusion of the Lanham Act claim at issue here is the pre-emption provision added to the FDCA in 1990 as part of the Nutrition Labeling and Education Act. See 21 U.S. C. §343–1. But, far from expressly precluding suits arising under other federal laws, the provision if anything suggests that Lanham Act suits are not precluded. This pre-emption provision forbids a “State or political subdivision of a State” from imposing requirements that are of the type but “not identical to” corresponding FDCA requirements for food and beverage labeling. Ibid. It is significant that the complex pre-emption provision distin- guishes among different FDCA requirements. It forbids state-law requirements that are of the type but not identi- cal to only certain FDCA provisions with respect to food and beverage labeling. See §§343–1(a)(1)–(5) (citing some but not all of the subsections of §343); §6, 104 Stat. 2362– 2364 (codified at 21 U.S. C. §343–1, and note following). Just as significant, the provision does not refer to re- quirements imposed by other sources of law, such as fed- eral statutes. For purposes of deciding whether the FDCA displaces a regulatory or liability scheme in another stat- ute, it makes a substantial difference whether that other Cite as: 573 U. S. ____ (2014) 11 Opinion of the Court statute is state or federal. By taking care to mandate express pre-emption of some state laws, Congress if any- thing indicated it did not intend the FDCA to preclude requirements arising from other sources. See Setser v. United States, 566 U. S. ___, ___ (2012) (slip op., at 6–7) (applying principle of expressio unius est exclusio alterius). Pre-emption of some state requirements does not suggest an intent to preclude federal claims. The structures of the FDCA and the Lanham Act rein- force the conclusion drawn from the text. When two stat- utes complement each other, it would show disregard for the congressional design to hold that Congress nonethe- less intended one federal statute to preclude the operation of the other. See J. E. M. Ag Supply, Inc. v. Pioneer Hi- Bred Int’l, Inc., 534 U.S. 124, 144 (2001) (“[W]e can plainly regard each statute as effective because of its different requirements and protections”); see also Wyeth, supra, at 578–579. The Lanham Act and the FDCA complement each other in major respects, for each has its own scope and purpose. Although both statutes touch on food and beverage labeling, the Lanham Act protects commercial interests against unfair competition, while the FDCA protects public health and safety. Compare Lexmark, 572 U. S., at ___ (slip op., at 12–13), with 62 Cases of Jam, 340 U.S., at 596. The two statutes impose “different require- ments and protections.” J. E. M. Ag Supply, supra, at 144. The two statutes complement each other with respect to remedies in a more fundamental respect. Enforcement of the FDCA and the detailed prescriptions of its implement- ing regulations is largely committed to the FDA. The FDA, however, does not have the same perspective or expertise in assessing market dynamics that day-to-day competitors possess. Competitors who manufacture or distribute products have detailed knowledge regarding how consumers rely upon certain sales and marketing strategies. Their awareness of unfair competition prac- 12 POM WONDERFUL LLC v. COCA-COLA CO. Opinion of the Court tices may be far more immediate and accurate than that of agency rulemakers and regulators. Lanham Act suits draw upon this market expertise by empowering private parties to sue competitors to protect their interests on a case-by-case basis. By “serv[ing] a distinct compensatory function that may motivate injured persons to come for- ward,” Lanham Act suits, to the extent they touch on the same subject matter as the FDCA, “provide incentives” for manufacturers to behave well. See id., at 579. Allowing Lanham Act suits takes advantage of synergies among multiple methods of regulation. This is quite consistent with the congressional design to enact two different stat- utes, each with its own mechanisms to enhance the protec- tion of competitors and consumers. A holding that the FDCA precludes Lanham Act claims challenging food and beverage labels would not only ignore the distinct functional aspects of the FDCA and the Lan- ham Act but also would lead to a result that Congress likely did not intend. Unlike other types of labels regu- lated by the FDA, such as drug labels, see 21 U.S. C. §355(d), it would appear the FDA does not preapprove food and beverage labels under its regulations and instead relies on enforcement actions, warning letters, and other measures. See Brief for United States as Amicus Curiae in Opposition 16. Because the FDA acknowledges that it does not necessarily pursue enforcement measures regard- ing all objectionable labels, ibid., if Lanham Act claims were to be precluded then commercial interests—and indirectly the public at large—could be left with less effec- tive protection in the food and beverage labeling realm than in many other, less regulated industries. It is un- likely that Congress intended the FDCA’s protection of health and safety to result in less policing of misleading food and beverage labels than in competitive markets for other products. Cite as: 573 U. S. ____ (2014) 13 Opinion of the Court C Coca-Cola argues the FDCA precludes POM’s Lanham Act claim because Congress intended national uniformity in food and beverage labeling. Coca-Cola notes three aspects of the FDCA to support that position: delegation of enforcement authority to the Federal Government rather than private parties; express pre-emption with respect to state laws; and the specificity of the FDCA and its imple- menting regulations. But these details of the FDCA do not establish an intent or design to preclude Lanham Act claims. Coca-Cola says that the FDCA’s delegation of enforce- ment authority to the Federal Government shows Con- gress’ intent to achieve national uniformity in labeling. But POM seeks to enforce the Lanham Act, not the FDCA or its regulations. The centralization of FDCA enforce- ment authority in the Federal Government does not indi- cate that Congress intended to foreclose private enforce- ment of other federal statutes. Coca-Cola next appeals to the pre-emption provision added to the FDCA in 1990. See §343–1. It argues that allowing Lanham Act claims to proceed would undermine the pre-emption provision’s goal of ensuring that food and beverage manufacturers can market nationally without the burden of complying with a patchwork of require- ments. A significant flaw in this argument is that the pre- emption provision by its plain terms applies only to cer- tain state-law requirements, not to federal law. See Part II–B, supra. Coca-Cola in effect asks the Court to ignore the words “State or political subdivision of a State” in the statute. Even if it were proper to stray from the text in this way, it is far from clear that Coca-Cola’s assertions about na- tional uniformity in fact reflect the congressional design. Although the application of a federal statute such as the Lanham Act by judges and juries in courts throughout the 14 POM WONDERFUL LLC v. COCA-COLA CO. Opinion of the Court country may give rise to some variation in outcome, this is the means Congress chose to enforce a national policy to ensure fair competition. It is quite different from the disuniformity that would arise from the multitude of state laws, state regulations, state administrative agency rul- ings, and state-court decisions that are partially forbidden by the FDCA’s pre-emption provision. Congress not infre- quently permits a certain amount of variability by author- izing a federal cause of action even in areas of law where national uniformity is important. Compare Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 162 (1989) (“One of the fundamental purposes behind the Patent and Copyright Clauses of the Constitution was to promote national uniformity in the realm of intellectual property”), with 35 U.S. C. §281 (private right of action for patent infringement); see Wyeth, 555 U.S., at 570 (“[T]he [FDCA] contemplates that federal juries will resolve most mis- branding claims”). The Lanham Act itself is an example of this design: Despite Coca-Cola’s protestations, the Act is uniform in extending its protection against unfair compe- tition to the whole class it describes. It is variable only to the extent that those rights are enforced on a case-by-case basis. The variability about which Coca-Cola complains is no different than the variability that any industry covered by the Lanham Act faces. And, as noted, Lanham Act actions are a means to implement a uniform policy to prohibit unfair competition in all covered markets. Finally, Coca-Cola urges that the FDCA, and particu- larly its implementing regulations, addresses food and bev- erage labeling with much more specificity than is found in the provisions of the Lanham Act. That is true. The pages of FDA rulemakings devoted only to juice-blend labeling attest to the level of detail with which the FDA has examined the subject. E.g., Food Labeling; Declara- tion of Ingredients; Common or Usual Name for Non- standardized Foods; Diluted Juice Beverages, 58 Fed. Reg. Cite as: 573 U. S. ____ (2014) 15 Opinion of the Court 2897–2926 (1993). Because, as we have explained, the FDCA and the Lanham Act are complementary and have separate scopes and purposes, this greater specificity would matter only if the Lanham Act and the FDCA can- not be implemented in full at the same time. See RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 566 U. S. ___, ___ (2012) (slip op., at 5–7). But neither the statutory structure nor the empirical evidence of which the Court is aware indicates there will be any difficulty in fully enforc- ing each statute according to its terms. See Part II–B, supra. D The Government disagrees with both Coca-Cola and POM. It submits that a Lanham Act claim is precluded “to the extent the FDCA or FDA regulations specifically require or authorize the challenged aspects of [the] label.” Brief for United States as Amicus Curiae 11. Applying that standard, the Government argues that POM may not bring a Lanham Act challenge to the name of Coca-Cola’s product, but that other aspects of the label may be chal- lenged. That is because, the Government argues, the FDA regulations specifically authorize the names of juice blends but not the other aspects of the label that are at issue. In addition to raising practical concerns about drawing a distinction between regulations that “specifically . . . authorize” a course of conduct and those that merely tolerate that course, id., at 10–11, the flaw in the Govern- ment’s intermediate position is the same as that in Coca- Cola’s theory of the case. The Government assumes that the FDCA and its regulations are at least in some circum- stances a ceiling on the regulation of food and beverage labeling. But, as discussed above, Congress intended the Lanham Act and the FDCA to complement each other with respect to food and beverage labeling. 16 POM WONDERFUL LLC v. COCA-COLA CO. Opinion of the Court The Government claims that the “FDA’s juice-naming regulation reflects the agency’s ‘weigh[ing of] the compet- ing interests relevant to the particular requirement in question.’ ” Id., at 19 (quoting Medtronic, Inc. v. Lohr, 518 U.S. 470, 501 (1996)). The rulemaking indeed does al- lude, at one point, to a balancing of interests: It styles a particular requirement as “provid[ing] manufacturers with flexibility for labeling products while providing consumers with information that they need.” 58 Fed. Reg. 2919– 2920. But that rulemaking does not discuss or even cite the Lanham Act, and the Government cites no other statement in the rulemaking suggesting that the FDA considered the full scope of the interests the Lanham Act protects. In addition, and contrary to the language quoted above, the FDA explicitly encouraged manufacturers to include material on their labels that is not required by the regulations. Id., at 2919. A single isolated reference to a desire for flexibility is not sufficient to transform a rule- making that is otherwise at best inconclusive as to its interaction with other federal laws into one with preclu- sive force, even on the assumption that a federal regula- tion in some instances might preclude application of a federal statute. Cf. Williamson v. Mazda Motor of Amer- ica, Inc., 562 U. S. ___, ___ (2011) (slip op., at 10–11). In addition, Geier v. American Honda Motor Co., 529 U.S. 861 (2000), does not support the Government’s ar- gument. In Geier, the agency enacted a regulation delib- erately allowing manufacturers to choose between differ- ent options because the agency wanted to encourage diversity in the industry. A subsequent lawsuit chal- lenged one of those choices. The Court concluded that the action was barred because it directly conflicted with the agency’s policy choice to encourage flexibility to foster innovation. Id., at 875. Here, by contrast, the FDA has not made a policy judgment that is inconsistent with POM’s Lanham Act suit. This is not a case where a law- Cite as: 573 U. S. ____ (2014) 17 Opinion of the Court suit is undermining an agency judgment, and in any event the FDA does not have authority to enforce the Lanham Act. It is necessary to recognize the implications of the United States’ argument for preclusion. The Government asks the Court to preclude private parties from availing them- selves of a well-established federal remedy because an agency enacted regulations that touch on similar subject matter but do not purport to displace that remedy or even implement the statute that is its source. Even if agency regulations with the force of law that purport to bar other legal remedies may do so, see id., at 874; see also Wyeth, 555 U.S., at 576, it is a bridge too far to accept an agen- cy’s after-the-fact statement to justify that result here. An agency may not reorder federal statutory rights without congressional authorization. * * * Coca-Cola and the United States ask the Court to ele- vate the FDCA and the FDA’s regulations over the private cause of action authorized by the Lanham Act. But the FDCA and the Lanham Act complement each other in the federal regulation of misleading labels. Congress did not intend the FDCA to preclude Lanham Act suits like POM’s. The position Coca-Cola takes in this Court that because food and beverage labeling is involved it has no Lanham Act liability here for practices that allegedly mislead and trick consumers, all to the injury of competi- tors, finds no support in precedent or the statutes. 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. JUSTICE BREYER took no part in the consideration or decision of this case	POM Wonderful LLC makes and sells pomegranate juice products, including a pomegranate-blueberry juice blend. App. 23a. One of POM’s competitors is the Coca- Cola Company. Coca-Cola’s Minute Maid Division makes a juice blend sold with a label that, in describing the con- tents, displays the words “pomegranate blueberry” with far more prominence than other words on the label that show the juice to be a blend of five juices. In truth, the Coca-Cola product contains but 0.3% pomegranate juice and 0.2% blueberry juice. Alleging that the use of that label is deceptive and misleading, POM sued Coca-Cola under of the Lan- ham Act. as amended, 15 U.S. C. That provision allows one competitor to sue another if it alleges unfair competition arising from false or misleading product descriptions. The Court of Appeals for the Ninth Circuit held that, in the realm of labeling for food and beverages, a Lanham Act claim like POM’s is precluded by a second federal statute. The second statute is the Federal Food, Drug, and Cosmetic Act (FDCA), which forbids the 2 POM WONDERFUL LLC v. COCA-COLA CO. Opinion of the Court misbranding of food, including by means of false or mis- leading labeling. 403, 1047, as amended, 21 U.S. C. 343. The ruling that POM’s Lanham Act cause of action is precluded by the FDCA was incorrect. There is no statu- tory text or established interpretive principle to support the contention that the FDCA precludes Lanham Act suits like the one brought by POM in this case. Nothing in the text, history, or structure of the FDCA or the Lanham Act shows the congressional purpose or design to forbid these suits. Quite to the contrary, the FDCA and the Lanham Act complement each other in the federal regulation of misleading food and beverage labels. Competitors, in their own interest, may bring Lanham Act claims like POM’s that challenge food and beverage labels that are regulated by the FDCA. I A This case concerns the intersection and complementar- ity of these two federal laws. A proper beginning point is a description of the statutes. Congress enacted the Lanham Act nearly seven decades ago. See (16). As the Court explained earlier this Term, it “requires no guesswork” to ascertain Congress’ intent regarding this federal law, for Congress included a “detailed statement of the statute’s purposes.” Int’l, Inc. v. Static Control Components, Inc., 572 U. S. (2014) (slip op., at 12). Section 45 of the Lanham Act provides: “The intent of this chapter is to regulate commerce within the control of Congress by making actionable the deceptive and misleading use of marks in such commerce; to protect registered marks used in such commerce from interference by State, or territorial legislation; to protect persons engaged in such com- Cite as: 573 U. S. (2014) 3 Opinion of the Court merce against unfair competition; to prevent fraud and deception in such commerce by the use of repro- ductions, copies, counterfeits, or colorable imitations of registered marks; and to provide rights and reme- dies stipulated by treaties and conventions respecting trademarks, trade names, and unfair competition en- tered into between the United States and foreign na- tions.” 15 U.S. C. The Lanham Act’s trademark provisions are the primary means of achieving these ends. ut the Act also creates a federal remedy “that goes beyond trademark protection.” Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23, 29 (2003). The broader remedy is at issue here. The Lanham Act creates a cause of action for unfair competition through misleading advertising or labeling. Though in the end consumers also benefit from the Act’s proper enforcement, the cause of action is for competitors, not consumers. The term “competitor” is used in this opinion to indicate all those within the class of persons and entities protected by the Lanham Act. Competitors are within the class that may invoke the Lanham Act because they may suffer “an injury to a commercial interest in sales or business repu- tation proximately caused by [a] defendant’s misrepresen- tations.” at (slip op., at 22). The petitioner here asserts injury as a competitor. The cause of action the Act creates imposes civil liability on any person who “uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading descrip- tion of fact, or false or misleading representation of fact, which misrepresents the nature, characteristics, quali- ties, or geographic origin of his or her or another person’s goods, services, or commercial activities.” 15 U.S. C. As the Court held this Term, the private 4 POM WONDERFUL LLC v. COCA-COLA CO. Opinion of the Court remedy may be invoked only by those who “allege an injury to a commercial interest in reputation or sales. A consumer who is hoodwinked into purchasing a disap- pointing product may well have an injury-in-fact cogniza- ble under Article III, but he cannot invoke the protection of the Lanham Act.” 572 U. S., at (slip op., at 13). This principle reflects the Lanham Act’s purpose of “ ‘protect[ing] persons engaged in [commerce within the control of Congress] against unfair competition.’ ” at (slip op., at 12). POM’s cause of action would be straightforward enough but for Coca-Cola’s contention that a separate federal statutory regime, the FDCA, al- lows it to use the label in question and in fact precludes the Lanham Act claim. So the FDCA is the second statute to be discussed. The FDCA statutory regime is designed primarily to protect the health and safety of the public at large. See 62 Cases of ; FDCA, 21 U.S. C. (agency may issue certain regulations to “promote honesty and fair dealing in the interest of consumers”). The FDCA prohibits the misbranding of food and drink. 21 U.S. C. 331. A food or drink is deemed misbranded if, inter alia, “its labeling is false or misleading,” information re- quired to appear on its label “is not prominently placed thereon,” or a label does not bear “the common or usual name of the food, if any there be,” To im- plement these provisions, the Food and Drug Administra- tion (FDA) promulgated regulations regarding food and beverage labeling, including the labeling of mixes of dif- ferent types of juice into one juice blend. See 21 CFR (2013). One provision of those regulations is particularly relevant to this case: If a juice blend does not name all the juices it contains and mentions only juices that are not predominant in the blend, then it must either declare the percentage content of the named juice or Cite as: 573 U. S. (2014) 5 Opinion of the Court “[i]ndicate that the named juice is present as a flavor or flavoring,” e.g., “raspberry and cranberry flavored juice drink.” (d). The Government represents that the FDA does not preapprove juice labels under these regula- tions. See rief for United States as Amicus Curiae in Opposition 16. That contrasts with the FDA’s regulation of other types of labels, such as drug labels, see 21 U.S. C. and is consistent with the less extensive role the FDA plays in the regulation of food than in the regulation of drugs. Unlike the Lanham Act, which relies in substantial part for its enforcement on private suits brought by injured competitors, the FDCA and its regulations provide the United States with nearly exclusive enforcement author- ity, including the authority to seek criminal sanctions in some circumstances. 21 U.S. C. 337. Private parties may not bring enforcement suits. Also unlike the Lanham Act, the FDCA contains a provision pre-empting certain state laws on misbranding. That provision, which Congress added to the FDCA in the Nutrition Labeling and Education Act of 1990, 104 Stat. 2362–2364, forecloses a “State or political subdivi- sion of a State” from establishing requirements that are of the type but “not identical to” the requirements in some of the misbranding provisions of the FDCA. 21 U.S. C. It does not address, or refer to, other federal statutes or the preclusion thereof. POM Wonderful LLC is a grower of pomegranates and a distributor of pomegranate juices. Through its POM Wonderful brand, POM produces, markets, and sells a variety of pomegranate products, including a pomegranate- blueberry juice blend. App. 23a. POM competes in the pomegranate-blueberry juice market with the Coca-Cola Company. Coca-Cola, under 6 POM WONDERFUL LLC v. COCA-COLA CO. Opinion of the Court its Minute Maid brand, created a juice blend containing 99.4% apple and grape juices, 0.3% pomegranate juice, 0.2% blueberry juice, and 0.1% raspberry juice. at 38a; rief for Respondent 8. Despite the minuscule amount of pomegranate and blueberry juices in the blend, the front label of the Coca-Cola product displays the words “pomegranate blueberry” in all capital letters, on two separate lines. App. 38a. elow those words, Coca-Cola placed the phrase “flavored blend of 5 juices” in much smaller type. And below that phrase, in still smaller type, were the words “from concentrate with added ingre- dients”—and, with a line break before the final phrase— “and other natural flavors.” The product’s front label also displays a vignette of blueberries, grapes, and raspberries in front of a halved pomegranate and a halved apple. Claiming that Coca-Cola’s label tricks and deceives consumers, all to POM’s injury as a competitor, POM brought suit under the Lanham Act. POM alleged that the name, label, marketing, and advertising of Coca-Cola’s juice blend mislead consumers into believing the product consists predominantly of pomegranate and blueberry juice when it in fact consists predominantly of less expen- sive apple and grape juices. at 27a. That confusion, POM complained, causes it to lose sales. at 28a. POM sought damages and injunctive relief. at 32a–33a. The District Court granted partial summary judgment to Coca-Cola on POM’s Lanham Act claim, ruling that the FDCA and its regulations preclude challenges to the name and label of Coca-Cola’s juice blend. The District Court reasoned that in the juice blend regulations the “FDA has directly spoken on the issues that form the basis of Pom’s Lanham Act claim against the naming and labeling of ” Coca-Cola’s product, but has not prohibited any, and indeed expressly has permitted some, aspects of Coca- Cola’s label. Cite as: 573 U. S. (2014) 7 Opinion of the Court The Court of Appeals for the Ninth Circuit affirmed in relevant part. Like the District Court, the Court of Ap- peals reasoned that Congress decided “to entrust matters of juice beverage labeling to the FDA”; the FDA has prom- ulgated “comprehensive regulation of that labeling”; and the FDA “apparently” has not imposed the requirements on Coca-Cola’s label that are sought by POM. 679 F.3d 1170, 1178 (2012). “[U]nder [Circuit] precedent,” the Court of Appeals explained, “for a court to act when the FDA has not—despite regulating extensively in this area— would risk undercutting the FDA’s expert judgments and authority.” For these reasons, and “[o]ut of respect for the statutory and regulatory scheme,” the Court of Appeals barred POM’s Lanham Act claim. at 1178. II A This Court granted certiorari to consider whether a private party may bring a Lanham Act claim challenging a food label that is regulated by the FDCA. 571 U. S. (2014). The answer to that question is based on the fol- lowing premises. First, this is not a pre-emption case. In pre-emption cases, the question is whether state law is pre-empted by a federal statute, or in some instances, a federal agency action. See This case, however, concerns the alleged preclusion of a cause of action under one federal statute by the provisions of another federal statute. So the state-federal balance does not frame the inquiry. ecause this is a preclusion case, any “presumption against pre-emption,” n. 3, has no force. In addition, the preclusion analysis is not governed by the Court’s complex categorization of the types of pre-emption. See Although 8 POM WONDERFUL LLC v. COCA-COLA CO. Opinion of the Court the Court’s pre-emption precedent does not govern preclu- sion analysis in this case, its principles are instructive insofar as they are designed to assess the interaction of laws that bear on the same subject. Second, this is a statutory interpretation case and the Court relies on traditional rules of statutory interpreta- tion. That does not change because the case involves multiple federal statutes. See Nor does it change because an agency is involved. See Analysis of the statutory text, aided by established princi- ples of interpretation, controls. See Chickasaw Nation v. United States, A principle of interpretation is “often countered, of course, by some maxim pointing in a different direction.” Circuit City Stores, It is thus unsurprising that in this case a thresh- old dispute has arisen as to which of two competing max- ims establishes the proper framework for decision. POM argues that this case concerns whether one statute, the FDCA as amended, is an “implied repeal” in part of an- other statute, i.e., the Lanham Act. See, e.g., Carcieri v. Salazar, POM contends that in such cases courts must give full effect to both statutes unless they are in “irreconcilable conflict,” see ib and that this high standard is not satisfied here. Coca-Cola resists this canon and its high standard. Coca-Cola argues that the case concerns whether a more specific law, the FDCA, clarifies or narrows the scope of a more general law, the Lanham Act. See, e.g., United ; rief for Respondent 18. The Court’s task, it claims, is to “reconcil[e]” the laws, ib and it says the best reconciliation is that the more specific provisions of the FDCA bar certain causes of action au- thorized in a general manner by the Lanham Act. The Court does not need to resolve this dispute. Even Cite as: 573 U. S. (2014) 9 Opinion of the Court assuming that Coca-Cola is correct that the Court’s task is to reconcile or harmonize the statutes and not, as POM urges, to enforce both statutes in full unless there is a genuinely irreconcilable conflict, Coca-Cola is incorrect that the best way to harmonize the statutes is to bar POM’s Lanham Act claim. eginning with the text of the two statutes, it must be observed that neither the Lanham Act nor the FDCA, in express terms, forbids or limits Lanham Act claims chal- lenging labels that are regulated by the FDCA. y its terms, the Lanham Act subjects to suit any person who “misrepresents the nature, characteristics, qualities, or geographic origin” of goods or services. 15 U.S. C. This comprehensive imposition of liability ex- tends, by its own terms, to misrepresentations on labels, including food and beverage labels. No other provision in the Lanham Act limits that understanding or purports to govern the relevant interaction between the Lanham Act and the FDCA. And the FDCA, by its terms, does not preclude Lanham Act suits. In consequence, food and beverage labels regulated by the FDCA are not, under the terms of either statute, off limits to Lanham Act claims. No textual provision in either statute discloses a purpose to bar unfair competition claims like POM’s. This absence is of special significance because the Lan- ham Act and the FDCA have coexisted since the passage of the Lanham Act in 16. (16); ch. 675, (1938). If Congress had concluded, in light of experience, that Lanham Act suits could interfere with the FDCA, it might well have enacted a provision address- ing the issue during these 70 years. See at 574 (“If Congress thought state-law suits posed an obsta- cle to its objectives, it surely would have enacted an ex- press pre-emption provision at some point during the 10 POM WONDERFUL LLC v. COCA-COLA CO. Opinion of the Court FDCA’s 70-year history”). Congress enacted amendments to the FDCA and the Lanham Act, see, e.g., Nutrition Labeling and Education Act of 1990, ; Trademark Law Revision Act of 1988, 102 Stat. 36, including an amendment that added to the FDCA an express pre-emption provision with respect to state laws addressing food and beverage misbranding, 104 Stat. 2362. Yet Congress did not enact a provision addressing the preclusion of other federal laws that might bear on food and beverage labeling. This is “powerful evidence that Congress did not intend FDA oversight to be the exclusive means” of ensuring proper food and beverage labeling. See Perhaps the closest the statutes come to addressing the preclusion of the Lanham Act claim at issue here is the pre-emption provision added to the FDCA in 1990 as part of the Nutrition Labeling and Education Act. See 21 U.S. C. ut, far from expressly precluding suits arising under other federal laws, the provision if anything suggests that Lanham Act suits are not precluded. This pre-emption provision forbids a “State or political subdivision of a State” from imposing requirements that are of the type but “not identical to” corresponding FDCA requirements for food and beverage labeling. It is significant that the complex pre-emption provision distin- guishes among different FDCA requirements. It forbids state-law requirements that are of the type but not identi- cal to only certain FDCA provisions with respect to food and beverage labeling. See (citing some but not all of the subsections of – 2364 (codified at 21 U.S. C. and note following). Just as significant, the provision does not refer to re- quirements imposed by other sources of law, such as fed- eral statutes. For purposes of deciding whether the FDCA displaces a regulatory or liability scheme in another stat- ute, it makes a substantial difference whether that other Cite as: 573 U. S. (2014) 11 Opinion of the Court statute is state or federal. y taking care to mandate express pre-emption of some state laws, Congress if any- thing indicated it did not intend the FDCA to preclude requirements arising from other sources. See Setser v. United States, 566 U. S. (2012) (slip op., at 6–7) (applying principle of expressio unius est exclusio alterius). Pre-emption of some state requirements does not suggest an intent to preclude federal claims. The structures of the FDCA and the Lanham Act rein- force the conclusion drawn from the text. When two stat- utes complement each other, it would show disregard for the congressional design to hold that Congress nonethe- less intended one federal statute to preclude the operation of the other. See J. E. M. Ag (“[W]e can plainly regard each statute as effective because of its different requirements and protections”); see also at 578–579. The Lanham Act and the FDCA complement each other in major respects, for each has its own scope and purpose. Although both statutes touch on food and beverage labeling, the Lanham Act protects commercial interests against unfair competition, while the FDCA protects public health and safety. Compare 572 U. S., at (slip op., at 12–13), with 62 Cases of Jam, 340 U.S., at The two statutes impose “different require- ments and protections.” J. E. M. Ag at The two statutes complement each other with respect to remedies in a more fundamental respect. Enforcement of the FDCA and the detailed prescriptions of its implement- ing regulations is largely committed to the FDA. The FDA, however, does not have the same perspective or expertise in assessing market dynamics that day-to-day competitors possess. Competitors who manufacture or distribute products have detailed knowledge regarding how consumers rely upon certain sales and marketing strategies. Their awareness of unfair competition prac- 12 POM WONDERFUL LLC v. COCA-COLA CO. Opinion of the Court tices may be far more immediate and accurate than that of agency rulemakers and regulators. Lanham Act suits draw upon this market expertise by empowering private parties to sue competitors to protect their interests on a case-by-case basis. y “serv[ing] a distinct compensatory function that may motivate injured persons to come for- ward,” Lanham Act suits, to the extent they touch on the same subject matter as the FDCA, “provide incentives” for manufacturers to behave well. See Allowing Lanham Act suits takes advantage of synergies among multiple methods of regulation. This is quite consistent with the congressional design to enact two different stat- utes, each with its own mechanisms to enhance the protec- tion of competitors and consumers. A holding that the FDCA precludes Lanham Act claims challenging food and beverage labels would not only ignore the distinct functional aspects of the FDCA and the Lan- ham Act but also would lead to a result that Congress likely did not intend. Unlike other types of labels regu- lated by the FDA, such as drug labels, see 21 U.S. C. it would appear the FDA does not preapprove food and beverage labels under its regulations and instead relies on enforcement actions, warning letters, and other measures. See rief for United States as Amicus Curiae in Opposition 16. ecause the FDA acknowledges that it does not necessarily pursue enforcement measures regard- ing all objectionable labels, ib if Lanham Act claims were to be precluded then commercial interests—and indirectly the public at large—could be left with less effec- tive protection in the food and beverage labeling realm than in many other, less regulated industries. It is un- likely that Congress intended the FDCA’s protection of health and safety to result in less policing of misleading food and beverage labels than in competitive markets for other products. Cite as: 573 U. S. (2014) 13 Opinion of the Court C Coca-Cola argues the FDCA precludes POM’s Lanham Act claim because Congress intended national uniformity in food and beverage labeling. Coca-Cola notes three aspects of the FDCA to support that position: delegation of enforcement authority to the Federal Government rather than private parties; express pre-emption with respect to state laws; and the specificity of the FDCA and its imple- menting regulations. ut these details of the FDCA do not establish an intent or design to preclude Lanham Act claims. Coca-Cola says that the FDCA’s delegation of enforce- ment authority to the Federal Government shows Con- gress’ intent to achieve national uniformity in labeling. ut POM seeks to enforce the Lanham Act, not the FDCA or its regulations. The centralization of FDCA enforce- ment authority in the Federal Government does not indi- cate that Congress intended to foreclose private enforce- ment of other federal statutes. Coca-Cola next appeals to the pre-emption provision added to the FDCA in 1990. See It argues that allowing Lanham Act claims to proceed would undermine the pre-emption provision’s goal of ensuring that food and beverage manufacturers can market nationally without the burden of complying with a patchwork of require- ments. A significant flaw in this argument is that the pre- emption provision by its plain terms applies only to cer- tain state-law requirements, not to federal law. See Part II–, Coca-Cola in effect asks the Court to ignore the words “State or political subdivision of a State” in the statute. Even if it were proper to stray from the text in this way, it is far from clear that Coca-Cola’s assertions about na- tional uniformity in fact reflect the congressional design. Although the application of a federal statute such as the Lanham Act by judges and juries in courts throughout the 14 POM WONDERFUL LLC v. COCA-COLA CO. Opinion of the Court country may give rise to some variation in outcome, this is the means Congress chose to enforce a national policy to ensure fair competition. It is quite different from the disuniformity that would arise from the multitude of state laws, state regulations, state administrative agency rul- ings, and state-court decisions that are partially forbidden by the FDCA’s pre-emption provision. Congress not infre- quently permits a certain amount of variability by author- izing a federal cause of action even in areas of law where national uniformity is important. Compare onito oats, Inc. v. Thunder Craft oats, Inc., (“One of the fundamental purposes behind the Patent and Copyright Clauses of the Constitution was to promote national uniformity in the realm of intellectual property”), with 35 U.S. C. (private right of action for patent infringement); see (“[T]he [FDCA] contemplates that federal juries will resolve most mis- branding claims”). The Lanham Act itself is an example of this design: Despite Coca-Cola’s protestations, the Act is uniform in extending its protection against unfair compe- tition to the whole class it describes. It is variable only to the extent that those rights are enforced on a case-by-case basis. The variability about which Coca-Cola complains is no different than the variability that any industry covered by the Lanham Act faces. And, as noted, Lanham Act actions are a means to implement a uniform policy to prohibit unfair competition in all covered markets. Finally, Coca-Cola urges that the FDCA, and particu- larly its implementing regulations, addresses food and bev- erage labeling with much more specificity than is found in the provisions of the Lanham Act. That is true. The pages of FDA rulemakings devoted only to juice-blend labeling attest to the level of detail with which the FDA has examined the subject. E.g., Food Labeling; Declara- tion of Ingredients; Common or Usual Name for Non- standardized Foods; Diluted Juice everages, 58 Fed. Reg. Cite as: 573 U. S. (2014) 15 Opinion of the Court 2897–2926 (1993). ecause, as we have explained, the FDCA and the Lanham Act are complementary and have separate scopes and purposes, this greater specificity would matter only if the Lanham Act and the FDCA can- not be implemented in full at the same time. See RadLAX Gateway Hotel, LLC v. Amalgamated ank, 566 U. S. (2012) (slip op., at 5–7). ut neither the statutory structure nor the empirical evidence of which the Court is aware indicates there will be any difficulty in fully enforc- ing each statute according to its terms. See Part II–, D The Government disagrees with both Coca-Cola and POM. It submits that a Lanham Act claim is precluded “to the extent the FDCA or FDA regulations specifically require or authorize the challenged aspects of [the] label.” rief for United States as Amicus Curiae 11. Applying that standard, the Government argues that POM may not bring a Lanham Act challenge to the name of Coca-Cola’s product, but that other aspects of the label may be chal- lenged. That is because, the Government argues, the FDA regulations specifically authorize the names of juice blends but not the other aspects of the label that are at issue. In addition to raising practical concerns about drawing a distinction between regulations that “specifically authorize” a course of conduct and those that merely tolerate that course, at 10–11, the flaw in the Govern- ment’s intermediate position is the same as that in Coca- Cola’s theory of the case. The Government assumes that the FDCA and its regulations are at least in some circum- stances a ceiling on the regulation of food and beverage labeling. ut, as discussed above, Congress intended the Lanham Act and the FDCA to complement each other with respect to food and beverage labeling. 16 POM WONDERFUL LLC v. COCA-COLA CO. Opinion of the Court The Government claims that the “FDA’s juice-naming regulation reflects the agency’s ‘weigh[ing of] the compet- ing interests relevant to the particular requirement in question.’ ” (quoting Medtronic, Inc. v. Lohr, 518 U.S. 470, 501 (1996)). The rulemaking indeed does al- lude, at one point, to a balancing of interests: It styles a particular requirement as “provid[ing] manufacturers with flexibility for labeling products while providing consumers with information that they need.” – 2920. ut that rulemaking does not discuss or even cite the Lanham Act, and the Government cites no other statement in the rulemaking suggesting that the FDA considered the full scope of the interests the Lanham Act protects. In addition, and contrary to the language quoted above, the FDA explicitly encouraged manufacturers to include material on their labels that is not required by the regulations. A single isolated reference to a desire for flexibility is not sufficient to transform a rule- making that is otherwise at best inconclusive as to its interaction with other federal laws into one with preclu- sive force, even on the assumption that a federal regula- tion in some instances might preclude application of a federal statute. Cf. Williamson v. Mazda Motor of Amer- ica, Inc., 562 U. S. (2011) (slip op., at 10–11). In addition, Geier v. American Honda Motor Co., 529 U.S. 861 does not support the Government’s ar- gument. In Geier, the agency enacted a regulation delib- erately allowing manufacturers to choose between differ- ent options because the agency wanted to encourage diversity in the industry. A subsequent lawsuit chal- lenged one of those choices. The Court concluded that the action was barred because it directly conflicted with the agency’s policy choice to encourage flexibility to foster innovation. Here, by contrast, the FDA has not made a policy judgment that is inconsistent with POM’s Lanham Act suit. This is not a case where a law- Cite as: 573 U. S. (2014) 17 Opinion of the Court suit is undermining an agency judgment, and in any event the FDA does not have authority to enforce the Lanham Act. It is necessary to recognize the implications of the United States’ argument for preclusion. The Government asks the Court to preclude private parties from availing them- selves of a well-established federal remedy because an agency enacted regulations that touch on similar subject matter but do not purport to displace that remedy or even implement the statute that is its source. Even if agency regulations with the force of law that purport to bar other legal remedies may do so, see ; see also it is a bridge too far to accept an agen- cy’s after-the-fact statement to justify that result here. An agency may not reorder federal statutory rights without congressional authorization. * * * Coca-Cola and the United States ask the Court to ele- vate the FDCA and the FDA’s regulations over the private cause of action authorized by the Lanham Act. ut the FDCA and the Lanham Act complement each other in the federal regulation of misleading labels. Congress did not intend the FDCA to preclude Lanham Act suits like POM’s. The position Coca-Cola takes in this Court that because food and beverage labeling is involved it has no Lanham Act liability here for practices that allegedly mislead and trick consumers, all to the injury of competi- tors, finds no support in precedent or the statutes. 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. JUSTICE REYER took no part in the consideration or decision of this case	2,099
Justice Breyer	majority	false	Brown v. Pro Football, Inc.	1996-06-20	null	https://www.courtlistener.com/opinion/118051/brown-v-pro-football-inc/	https://www.courtlistener.com/api/rest/v3/clusters/118051/	1,996	1995-078	1	8	1	The question in this case arises at the intersection of the Nation's labor and antitrust laws. A group of professional 234 football players brought this antitrust suit against football club owners. The club owners had bargained with the players' union over a wage issue until they reached impasse. The owners then had agreed among themselves (but not with the union) to implement the terms of their own last best bargaining offer. The question before us is whether federal labor laws shield such an agreement from antitrust attack. We believe that they do. This Court has previously found in the labor laws an implicit antitrust exemption that applies where needed to make the collective-bargaining process work. Like the Court of Appeals, we conclude that this need makes the exemption applicable in this case. I We can state the relevant facts briefly. In 1987, a collective-bargaining agreement between the National Football League (NFL or League), a group of football clubs, and the NFL Players Association, a labor union, expired. The NFL and the Players Association began to negotiate a new contract. In March 1989, during the negotiations, the NFL adopted Resolution G-2, a plan that would permit each club to establish a "developmental squad" of up to six rookie or "first-year" players who, as free agents, had failed to secure a position on a regular player roster. See App. 42. Squad members would play in practice games and sometimes in regular games as substitutes for injured players. Resolution G-2 provided that the club owners would pay all squad members the same weekly salary. The next month, April, the NFL presented the developmental squad plan to the Players Association. The NFL proposed a squad player salary of $1,000 per week. The Players Association disagreed. It insisted that the club owners give developmental squad players benefits and protections similar to those provided regular players, and that they leave individual squad members free to negotiate their own salaries. 235 Two months later, in June, negotiations on the issue of developmental squad salaries reached an impasse. The NFL then unilaterally implemented the developmental squad program by distributing to the clubs a uniform contract that embodied the terms of Resolution G-2 and the $1,000 proposed weekly salary. The League advised club owners that paying developmental squad players more or less than $1,000 per week would result in disciplinary action, including the loss of draft choices. In May 1990, 235 developmental squad players brought this antitrust suit against the League and its member clubs. The players claimed that their employers' agreement to pay them a $1,000 weekly salary violated the Sherman Act. See 15 U.S. C. § 1 (forbidding agreements in restraint of trade). The Federal District Court denied the employers' claim of exemption from the antitrust laws; it permitted the case to reach the jury; and it subsequently entered judgment on a jury treble-damages award that exceeded $30 million. The NFL and its member clubs appealed. The Court of Appeals (by a split 2-to-1 vote) reversed. The majority interpreted the labor laws as "waiv[ing] antitrust liability for restraints on competition imposed through the collective-bargaining process, so long as such restraints operate primarily in a labor market characterized by collective bargaining." 50 F.3d 1041, 1056 (CADC 1995). The court held, consequently, that the club owners were immune from antitrust liability. We granted certiorari to review that determination. Although we do not interpret the exemption as broadly as did the Appeals Court, we nonetheless find the exemption applicable, and we affirm that court's immunity conclusion. II The immunity before us rests upon what this Court has called the "nonstatutory" labor exemption from the antitrust laws. Connell Constr. Co. v. Plumbers, 421 U.S. 616, 622 (1975); see also Meat Cutters v. Jewel Tea Co., 381 U.S. 676 236 (1965); Mine Workers v. Pennington, 381 U.S. 657 (1965). The Court has implied this exemption from federal labor statutes, which set forth a national labor policy favoring free and private collective bargaining, see 29 U.S. C. § 151; Teamsters v. Oliver, 358 U.S. 283, 295 (1959); which require goodfaith bargaining over wages, hours, and working conditions, see 29 U.S. C. §§ 158(a)(5), 158(d); NLRB v. Wooster Div. of Borg-Warner Corp., 356 U.S. 342, 348-349 (1958); and which delegate related rulemaking and interpretive authority to the National Labor Relations Board (Board), see 29 U.S. C. § 153; San Diego Building Trades Council v. Garmon, 359 U.S. 236, 242-245 (1959). This implicit exemption reflects both history and logic. As a matter of history, Congress intended the labor statutes (from which the Court has implied the exemption) in part to adopt the views of dissenting Justices in Duplex Printing Press Co. v. Deering, 254 U.S. 443 (1921), which Justices had urged the Court to interpret broadly a different explicit "statutory" labor exemption that Congress earlier (in 1914) had written directly into the antitrust laws. Id., at 483-488 (Brandeis, J., joined by Holmes and Clarke, JJ., dissenting) (interpreting § 20 of the Clayton Act, 38 Stat. 738, 29 U.S. C. § 52); see also United States v. Hutcheson, 312 U.S. 219, 230-236 (1941) (discussing congressional reaction to Duplex ). In the 1930's, when it subsequently enacted the labor statutes, Congress, as in 1914, hoped to prevent judicial use of antitrust law to resolve labor disputesa kind of dispute normally inappropriate for antitrust law resolution. See Jewel Tea, supra, at 700-709 (opinion of Goldberg, J.); Marine Cooks v. Panama S. S. Co., 362 U.S. 365, 370, n. 7 (1960); A. Cox, Law and the National Labor Policy 3-8 (1960); cf. Duplex, supra, at 485 (Brandeis, J., dissenting) (explicit "statutory" labor exemption reflected view that "Congress, not the judges, was the body which should declare what public policy in regard to the industrial struggle demands"). The implicit ("nonstatutory") exemption interprets the labor statutes in 237 accordance with this intent, namely, as limiting an antitrust court's authority to determine, in the area of industrial conflict, what is or is not a "reasonable" practice. It thereby substitutes legislative and administrative labor-related determinations for judicial antitrust-related determinations as to the appropriate legal limits of industrial conflict. See Jewel Tea, supra, at 709-710. As a matter of logic, it would be difficult, if not impossible, to require groups of employers and employees to bargain together, but at the same time to forbid them to make among themselves or with each other any of the competitionrestricting agreements potentially necessary to make the process work or its results mutually acceptable. Thus, the implicit exemption recognizes that, to give effect to federal labor laws and policies and to allow meaningful collective bargaining to take place, some restraints on competition imposed through the bargaining process must be shielded from antitrust sanctions. See Connell, supra, at 622 (federal labor law's "goals" could "never" be achieved if ordinary anticompetitive effects of collective bargaining were held to violate the antitrust laws); Jewel Tea, supra, at 711 (national labor law scheme would be "virtually destroyed" by the routine imposition of antitrust penalties upon parties engaged in collective bargaining); Pennington, supra, at 665 (implicit exemption necessary to harmonize Sherman Act with "national policy . . . of promoting `the peaceful settlement of industrial disputes by subjecting labor-management controversies to the mediatory influence of negotiation' ") (quoting Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203, 211 (1964)). The petitioners and their supporters concede, as they must, the legal existence of the exemption we have described. They also concede that, where its application is necessary to make the statutorily authorized collectivebargaining process work as Congress intended, the exemption must apply both to employers and to employees. 238 Accord, Volkswagenwerk Aktiengesellschaft v. Federal Maritime Comm'n, 390 U.S. 261, 287, n. 5 (1968) (Harlan, J., concurring); Jewel Tea, supra, at 729-732, 735 (opinion of Goldberg, J.); Brief for AFL-CIO as Amicus Curiae in Associated Gen. Contractors of Cal., Inc. v. Carpenters, O. T. 1981, No. 81-334, pp. 16-17; see also P. Areeda & H. Hovenkamp, Antitrust Law ¶ 229'd (1995 Supp.) (collecting recent Court of Appeals cases); cf. H. A. Artists & Associates, Inc. v. Actors' Equity Assn., 451 U.S. 704, 717, n. 20 (1981) (explicit "statutory" exemption applies only to "bona fide labor organization[s]"). Nor does the dissent take issue with these basic principles. See post, at 253-254. Consequently, the question before us is one of determining the exemption's scope: Does it apply to an agreement among several employers bargaining together to implement after impasse the terms of their last best good-faith wage offer? We assume that such conduct, as practiced in this case, is unobjectionable as a matter of labor law and policy. On that assumption, we conclude that the exemption applies. Labor law itself regulates directly, and considerably, the kind of behavior here at issuethe postimpasse imposition of a proposed employment term concerning a mandatory subject of bargaining. Both the Board and the courts have held that, after impasse, labor law permits employers unilaterally to implement changes in pre-existing conditions, but only insofar as the new terms meet carefully circumscribed conditions. For example, the new terms must be "reasonably comprehended" within the employer's preimpasse proposals (typically the last rejected proposals), lest by imposing more or less favorable terms, the employer unfairly undermined the union's status. Storer Communications, Inc., 294 N. L. R. B. 1056, 1090 (1989); Taft Broadcasting Co., 163 N. L. R. B. 475, 478 (1967), enf'd, 395 F.2d 622 (CADC 1968); see also NLRB v. Katz, 369 U.S. 736, 745, and n. 12 (1962). The collective-bargaining proceeding itself must be free of 239 any unfair labor practice, such as an employer's failure to have bargained in good faith. See Akron Novelty Mfg. Co., 224 N. L. R. B. 998, 1002 (1976) (where employer has not bargained in good faith, it may not implement a term of employment); 1 P. Hardin, The Developing Labor Law 697 (3d ed. 1992) (same). These regulations reflect the fact that impasse and an accompanying implementation of proposals constitute an integral part of the bargaining process. See Bonanno Linen Serv., Inc., 243 N. L. R. B. 1093, 1094 (1979) (describing use of impasse as a bargaining tactic), enf'd, 630 F.2d 25 (CA1 1980), aff'd, 454 U.S. 404 (1982); Colorado-Ute Elec. Assn., 295 N. L. R. B. 607, 609 (1989), enf.denied on other grounds, 939 F.2d 1392 (CA10 1991), cert. denied, 504 U.S. 955 (1992). Although the case law we have cited focuses upon bargaining by a single employer, no one here has argued that labor law does, or should, treat multi employer bargaining differently in this respect. Indeed, Board and court decisions suggest that the joint implementation of proposed terms after impasse is a familiar practice in the context of multiemployer bargaining. See, e. g., El Cerrito Mill & Lumber Co., 316 N. L. R. B. 1005 (1995); Paramount Liquor Co., 307 N. L. R. B. 676, 686 (1992); NKS Distributors, Inc., 304 N. L. R. B. 338, 340-341 (1991), rev'd, 50 F.3d 18 (CA9 1995); Sage Development Co., 301 N. L. R. B. 1173, 1175 (1991); Walker Constr. Co., 297 N. L. R. B. 746, 748 (1990), enf'd, 928 F.2d 695 (CA5 1991); Food Employers Council, Inc., 293 N. L. R. B. 333, 334, 345-346 (1989); Tile, Terazzo & Marble Contractors Assn., 287 N. L. R. B. 769, 772 (1987), enf'd, 935 F.2d 1249 (CA11 1991), cert. denied, 502 U.S. 1031 (1992); Salinas Valley Ford Sales, Inc., 279 N. L. R. B. 679, 686, 690 (1986); Carlsen Porsche Audi, Inc., 266 N. L. R. B. 141, 152-153 (1983); Typographic Service Co., 238 N. L. R. B. 1565 (1978); United Fire Proof Warehouse Co. v. NLRB, 356 F.2d 494, 498-499 (CA7 1966); Cuyamaca Meats, Inc. v. Butchers' 240 and Food Employers' Pension Trust Fund, 638 F. Supp. 885, 887 (SD Cal. 1986), aff'd, 827 F.2d 491 (CA9 1987), cert. denied, 485 U.S. 1008 (1988). We proceed on that assumption. Multiemployer bargaining itself is a well-established, important, pervasive method of collective bargaining, offering advantages to both management and labor. See Appendix, infra, p. 251 (multiemployer bargaining accounts for more than 40% of major collective-bargaining agreements, and is used in such industries as construction, transportation, retail trade, clothing manufacture, and real estate, as well as professional sports); NLRB v. Truck Drivers, 353 U.S. 87, 95 (1957) (Buffalo Linen) (Congress saw multiemployer bargaining as "a vital factor in the effectuation of the national policy of promoting labor peace through strengthened collective bargaining"); Charles D. Bonanno Linen Service, Inc. v.NLRB, 454 U.S. 404, 409, n. 3 (1982) (Bonanno Linen) (multiemployer bargaining benefits both management and labor, by saving bargaining resources, by encouraging development of industry-wide worker benefits programs that smaller employers could not otherwise afford, and by inhibiting employer competition at the workers' expense); Brief for Respondent NLRB in Bonanno Linen, O. T. 1981, No. 80-931, p. 10, n. 7 (same); General Subcommittee on Labor, House Committee on Education and Labor, Multiemployer Association Bargaining and its Impact on the Collective Bargaining Process, 88th Cong., 2d Sess., 10-19, 32-33 (Comm. Print 1964) (same); see also C. Bonnett, Employers' Associations in the United States: A Study of Typical Associations (1922) (history). The upshot is that the practice at issue here plays a significant role in a collective-bargaining process that itself constitutes an important part of the Nation's industrial relations system. In these circumstances, to subject the practice to antitrust law is to require antitrust courts to answer a host of important practical questions about how collective bargaining over 241 wages, hours, and working conditions is to proceedthe very result that the implicit labor exemption seeks to avoid. And it is to place in jeopardy some of the potentially beneficial labor-related effects that multiemployer bargaining can achieve. That is because unlike labor law, which sometimes welcomes anticompetitive agreements conducive to industrial harmony, antitrust law forbids all agreements among competitors (such as competing employers) that unreasonably lessen competition among or between them in virtually any respect whatsoever. See, e. g., Paramount Famous Lasky Corp. v. United States, 282 U.S. 30 (1930) (agreement to insert arbitration provisions in motion picture licensing contracts). Antitrust law also sometimes permits judges or juries to premise antitrust liability upon little more than uniform behavior among competitors, preceded by conversations implying that later uniformity might prove desirable, see, e. g., United States v. General Motors Corp., 384 U.S. 127, 142-143 (1966); United States v. Foley, 598 F.2d 1323, 1331-1332 (CA4 1979), cert. denied, 444 U.S. 1043 (1980), or accompanied by other conduct that in context suggests that each competitor failed to make an independent decision, see, e. g., American Tobacco Co. v. United States, 328 U.S. 781, 809-810 (1946); United States v. Masonite Corp., 316 U.S. 265, 275 (1942); Interstate Circuit, Inc. v. United States, 306 U.S. 208, 226-227 (1939). See generally 6 P. Areeda, Antitrust Law ¶¶ 1416-1427 (1986); Turner, The Definition of Agreement Under the Sherman Act: Conscious Parallelism and Refusals to Deal, 75 Harv. L. Rev. 655 (1962). If the antitrust laws apply, what are employers to do once impasse is reached? If all impose terms similar to their last joint offer, they invite an antitrust action premised upon identical behavior (along with prior or accompanying conversations) as tending to show a common understanding or agreement. If any, or all, of them individually impose terms that differ significantly from that offer, they invite an unfair 242 labor practice charge. Indeed, how can employers safely discuss their offers together even before a bargaining impasse occurs? A preimpasse discussion about, say, the practical advantages or disadvantages of a particular proposal invites a later antitrust claim that they agreed to limit the kinds of action each would later take should an impasse occur. The same is true of postimpasse discussions aimed at renewed negotiations with the union. Nor would adherence to the terms of an expired collective-bargaining agreement eliminate a potentially plausible antitrust claim charging that they had "conspired" or tacitly "agreed" to do so, particularly if maintaining the status quo were not in the immediate economic self-interest of some. Cf. Interstate Circuit, supra, at 222-223; 6 Areeda, supra, ¶ 1425. All this is to say that to permit antitrust liability here threatens to introduce instability and uncertainty into the collectivebargaining process, for antitrust law often forbids or discourages the kinds of joint discussions and behavior that the collective-bargaining process invites or requires. We do not see any obvious answer to this problem. We recognize, as the Government suggests, that, in principle, antitrust courts might themselves try to evaluate particular kinds of employer understandings, finding them "reasonable" (hence lawful) where justified by collective-bargaining necessity. But any such evaluation means a web of detailed rules spun by many different nonexpert antitrust judges and juries, not a set of labor rules enforced by a single expert administrative body, namely the Board. The labor laws give the Board, not antitrust courts, primary responsibility for policing the collective-bargaining process. And one of their objectives was to take from antitrust courts the authority to determine, through application of the antitrust laws, what is socially or economically desirable collective-bargaining policy. See supra, at 236-237; see also Jewel Tea, 381 U. S., at 716-719 (opinion of Goldberg, J.). 243 III Both petitioners and their supporters advance several suggestions for drawing the exemption boundary line short of this case. We shall explain why we find them unsatisfactory. A Petitioners claim that the implicit exemption applies only to labor-management agreements a limitation that they deduce from case law language, see, e. g., Connell, 421 U. S., at 622 (exemption for "some union-employer agreements ") (emphasis added), and from a proposed principlethat the exemption must rest upon labor-management consent. The language, however, reflects only the fact that the cases previously before the Court involved collective-bargaining agreements, see id., at 619-620; Pennington, 381 U. S., at 660; Jewel Tea, supra, at 679-680; the language does not reflect the exemption's rationale, see 50 F.3d, at 1050. Nor do we see how an exemption limited by petitioners' principle of labor-management consent could work. One cannot mean the principle literallythat the exemption applies only to understandings embodied in a collectivebargaining agreementfor the collective-bargaining process may take place before the making of any agreement or after an agreement has expired. Yet a multiemployer bargaining process itself necessarily involves many procedural and substantive understandings among participating employers as well as with the union. Petitioners cannot rescue their principle by claiming that the exemption applies only insofar as both labor and management consent to those understandings. Often labor will not (and should not) consent to certain common bargaining positions that employers intend to maintain. Cf. Areeda & Hovenkamp, Antitrust Law ¶ 229'd, at 277 ("[J]oint employer preparation and bargaining in the context of a formal multi-employer bargaining unit is clearly exempt"). Similarly, labor need not consent to certain tactics that this Court has approved as part of the multiemployer 244 bargaining process, such as unit-wide lockouts and the use of temporary replacements. See NLRB v. Brown, 380 U.S. 278, 284 (1965); Buffalo Linen, 353 U. S., at 97. Petitioners cannot save their consent principle by weakening it, as by requiring union consent only to the multiemployer bargaining process itself. This general consent is automatically present whenever multiemployer bargaining takes place. See Hi-Way Billboards, Inc., 206 N. L. R. B. 22 (1973) (multiemployer unit "based on consent" and "established by an unequivocal agreement by the parties"), enf. denied on other grounds, 500 F.2d 181 (CA5 1974); Weyerhaeuser Co., 166 N. L. R. B. 299, 299-300 (1967). As so weakened, the principle cannot help decide which related practices are, or are not, subject to antitrust immunity. B The Government argues that the exemption should terminate at the point of impasse. After impasse, it says, "employers no longer have a duty under the labor laws to maintain the status quo," and "are free as a matter of labor law to negotiate individual arrangements on an interim basis with the union." Brief for United States et al. as Amici Curiae 17. Employers, however, are not completely free at impasse to act independently. The multiemployer bargaining unit ordinarily remains intact; individual employers cannot withdraw. Bonanno Linen, 454 U. S., at 410-413. The duty to bargain survives; employers must stand ready to resume collective bargaining. See, e. g., Worldwide Detective Bureau, 296 N. L. R. B. 148, 155 (1989); Hi-Way Billboards, Inc., supra, at 23. And individual employers can negotiate individual interim agreements with the union only insofar as those agreements are consistent with "the duty to abide by the results of group bargaining." Bonanno Linen, supra, at 416. Regardless, the absence of a legal "duty" to act jointly is not determinative. This Court has implied antitrust immunities 245 that extend beyond statutorily required joint action to joint action that a statute "expressly or impliedly allows or assumes must also be immune." 1 P. Areeda & D. Turner, Antitrust Law ¶ 224, p. 145 (1978); see, e. g., Gordon v. New York Stock Exchange, Inc., 422 U.S. 659, 682-691 (1975) (immunizing application of joint rule that securities law permitted, but did not require); United States v. National Assn. of Securities Dealers, Inc., 422 U.S. 694, 720-730 (1975) (same). More importantly, the simple "impasse" line would not solve the basic problem we have described above. Supra, at 241-242. Labor law permits employers, after impasse, to engage in considerable joint behavior, including joint lockouts and replacement hiring. See, e. g., Brown, supra, at 289 (hiring of temporary replacement workers after lockout was "reasonably adapted to the achievement of a legitimate endpreserving the integrity of the multiemployer bargaining unit"). Indeed, as a general matter, labor law often limits employers to four options at impasse: (1) maintain the status quo, (2) implement their last offer, (3) lock out their workers (and either shut down or hire temporary replacements), or (4) negotiate separate interim agreements with the union. See generally 1 Hardin, The Developing Labor Law, at 516-520, 696-699. What is to happen if the parties cannot reach an interim agreement? The other alternatives are limited. Uniform employer conduct is likely. Uniformityat least when accompanied by discussion of the matter invites antitrust attack. And such attack would ask antitrust courts to decide the lawfulness of activities intimately related to the bargaining process. The problem is aggravated by the fact that "impasse" is often temporary, see Bonanno Linen, supra, at 412 (approving Board's view of impasse as "a recurring feature in the bargaining process, . . . a temporary deadlock or hiatus in negotiations which in almost all cases is eventually broken, through either a change of mind or the application of economic force") (internal quotation marks omitted); W. Simkin 246 & N. Fidandis, Mediation and the Dynamics of Collective Bargaining 139-140 (2d ed. 1986); it may differ from bargaining only in degree, see 1 Hardin, supra, at 691-696; Taft Broadcasting Co., 163 N. L. R. B., at 478; it may be manipulated by the parties for bargaining purposes, see Bonanno Linen, supra, at 413, n. 8 (parties might, for strategic purposes, "precipitate an impasse"); and it may occur several times during the course of a single labor dispute, since the bargaining process is not over when the first impasse is reached, cf. J. Bartlett, Familiar Quotations 754:8 (16th ed. 1992). How are employers to discuss future bargaining positions during a temporary impasse? Consider, too, the adverse consequences that flow from failing to guess how an antitrust court would later draw the impasse line. Employers who erroneously concluded that impasse had not been reached would risk antitrust liability were they collectively to maintain the status quo, while employers who erroneously concluded that impasse had occurred would risk unfair labor practice charges for prematurely suspending multiemployer negotiations. The United States responds with suggestions for softening an "impasse" rule by extending the exemption after impasse "for such time as would be reasonable in the circumstances" for employers to consult with counsel, confirm that impasse has occurred, and adjust their business operations, Brief for United States et al. as Amici Curiae 24; by reestablishing the exemption once there is a "resumption of goodfaith bargaining," id., at 18, n. 5; and by looking to antitrust law's "rule of reason" to shield"in some circumstances" such joint actions as the unit-wide lockout or the concerted maintenance of previously established joint benefit or retirement plans, ibid. But even as so modified, the impasserelated rule creates an exemption that can evaporate in the middle of the bargaining process, leaving later antitrust courts free to second-guess the parties' bargaining decisions 247 and consequently forcing them to choose their collectivebargaining responses in light of what they predict or fear that antitrust courts, not labor law administrators, will eventually decide. Cf. Dallas General Drivers, Warehousemen and Helpers, Local Union No. 745 v. NLRB, 355 F.2d 842, 844-845 (CADC 1966) ("The problem of deciding when further bargaining . . . is futile is often difficult for the bargainers and is necessarily so for the Board. But in the whole complex of industrial relations few issues are less suited to appellate judicial appraisal . . . or better suited to the expert experience of a board which deals constantly with such problems"). C Petitioners and their supporters argue in the alternative for a rule that would exempt postimpasse agreement about bargaining "tactics," but not postimpasse agreement about substantive "terms," from the reach of antitrust. See 50 F.3d, at 1066-1069 (Wald, J., dissenting). They recognize, however, that both the Board and the courts have said that employers can, and often do, employ the imposition of "terms" as a bargaining "tactic." See, e. g., American Ship Building Co. v. NLRB, 380 U.S. 300, 316 (1965); ColoradoUte Elec. Assn., Inc. v. NLRB, 939 F.2d 1392, 1404 (CA10 1991), cert. denied, 504 U.S. 955 (1992); Circuit-Wise, Inc., 309 N. L. R. B. 905, 921 (1992); Hi-Way Billboards, 206 N. L. R. B., at 23; Bonanno Linen, 243 N. L. R. B., at 1094. This concession as to joint "tactical" implementation would turn the presence of an antitrust exemption upon a determination of the employers' primary purpose or motive. See, e. g., 50 F. 3d, at 1069 (Wald, J., dissenting). But to ask antitrust courts, insulated from the bargaining process, to investigate an employer group's subjective motive is to ask them to conduct an inquiry often more amorphous than those we have previously discussed. And, in our view, a labor/ antitrust line drawn on such a basis would too often raise 248 the same related (previously discussed) problems. See supra, at 237, 241-242; Jewel Tea, 381 U. S., at 716 (opinion of Goldberg, J.) (expressing concern about antitrust judges "roaming at large" through the bargaining process). D Petitioners make several other arguments. They point, for example, to cases holding applicable, in collectivebargaining contexts, general "backdrop" statutes, such as a state statute requiring a plant-closing employer to make employee severance payments, Fort Halifax Packing Co. v. Coyne, 482 U.S. 1 (1987), and a state statute mandating certain minimum health benefits, Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724 (1985). Those statutes, however, "`neither encourage[d] nor discourage[d] the collective-bargaining processes that are the subject of the [federal labor laws].' " Fort Halifax, supra, at 21 (quoting Metropolitan Life, supra, at 755). Neither did those statutes come accompanied with antitrust's labor-related history. Cf. Oliver, 358 U. S., at 295-297 (state antitrust law interferes with collective bargaining and is not applicable to labor-management agreement). Petitioners also say that irrespective of how the labor exemption applies elsewhere to multiemployer collective bargaining, professional sports is "special." We can understand how professional sports may be special in terms of, say, interest, excitement, or concern. But we do not understand how they are special in respect to labor law's antitrust exemption. We concede that the clubs that make up a professional sports league are not completely independent economic competitors, as they depend upon a degree of cooperation for economic survival. National Collegiate Athletic Assn. v. Board of Regents of Univ. of Okla., 468 U.S. 85, 101-102 (1984); App. 110-115 (declaration of NFL Commissioner). In the present context, however, that circumstance 249 makes the league more like a single bargaining employer, which analogy seems irrelevant to the legal issue before us. We also concede that football players often have special individual talents, and, unlike many unionized workers, they often negotiate their pay individually with their employers. See post, at 255 (Stevens, J., dissenting). But this characteristic seems simply a feature, like so many others, that might give employees (or employers) more (or less) bargaining power, that might lead some (or all) of them to favor a particular kind of bargaining, or that might lead to certain demands at the bargaining table. We do not see how it could make a critical legal difference in determining the underlying framework in which bargaining is to take place. See generally Jacobs & Winter, Antitrust Principles and Collective Bargaining by Athletes: Of Superstars in Peonage, 81 Yale L. J. 1 (1971). Indeed, it would be odd to fashion an antitrust exemption that gave additional advantages to professional football players (by virtue of their superior bargaining power) that transport workers, coal miners, or meat packers would not enjoy. The dissent points to other "unique features" of the parties' collective-bargaining relationship, which, in the dissent's view, make the case "atypical." Post, at 255. It says, for example, that the employers imposed the restraint simply to enforce compliance with league-wide rules, and that the bargaining consisted of nothing more than the sending of a "notice," and therefore amounted only to "so-called" bargaining. Post, at 256-257. Insofar as these features underlie an argument for looking to the employers' true purpose, we have already discussed them. See supra, at 247-248. Insofar as they suggest that there was not a genuine impasse, they fight the basic assumption upon which the District Court, the Court of Appeals, petitioners, and this Court rest the case. See 782 F. Supp. 125, 134 (DC 1991); 50 F.3d, at 1056-1057; Pet. for Cert. i. Ultimately, we cannot find a satisfactory basis for distinguishing football players from 250 other organized workers. We therefore conclude that all must abide by the same legal rules. * * For these reasons, we hold that the implicit ("nonstatutory") antitrust exemption applies to the employer conduct at issue here. That conduct took place during and immediately after a collective-bargaining negotiation. It grew out of, and was directly related to, the lawful operation of the bargaining process. It involved a matter that the parties were required to negotiate collectively. And it concerned only the parties to the collective-bargaining relationship. Our holding is not intended to insulate from antitrust review every joint imposition of terms by employers, for an agreement among employers could be sufficiently distant in time and in circumstances from the collective-bargaining process that a rule permitting antitrust intervention would not significantly interfere with that process. See, e. g., 50 F. 3d, at 1057 (suggesting that exemption lasts until collapse of the collective-bargaining relationship, as evidenced by decertification of the union); El Cerrito Mill & Lumber Co., 316 N. L. R. B., at 1006-1007 (suggesting that "extremely long" impasse, accompanied by "instability" or "defunctness" of multiemployer unit, might justify union withdrawal from group bargaining). We need not decide in this case whether, or where, within these extreme outer boundaries to draw that line. Nor would it be appropriate for us to do so without the detailed views of the Board, to whose "specialized judgment" Congress "intended to leave" many of the "inevitable questions concerning multiemployer bargaining bound to arise in the future." Buffalo Linen, 353 U. S., at 96 (internal quotation marks omitted); see also Jewel Tea, 381 U. S., at 710, n. 18. The judgment of the Court of Appeals is affirmed. It is so ordered. *251 APPENDIX TO OPINION OF THE COURT TABLE A Major Bargaining Units and Employment in Private Industry, by Type of Bargaining Unit, 1994. (Covers bargaining units of 1,000 or more workers.) Number Percent Type Units Employment Units Employment I . . . . . . . . . . . . . . . . . 522 2,305,478 44 43 M&S . . . . . . . . . . . . . . 664 3,040,159 56 57 Total . . . . . . . . . . . . . . 1,186 5,345,637 100 100 I = Multiemployer. M = One company, more than one location. S = One company, single location. Source: U. S. Dept. of Labor, Bureau of Labor Statistics, unpublished data (Feb. 14, 1996) (available in Clerk of Court's case file). TABLE B Major Multiemployer Collective Bargaining Units and Employment in Private Industry, by Industry, 1994. (Covers bargaining units of 1,000 or more workers.) Number Percent Type Units Employment Units Employment All industries . . . . . . . . 522 2,305,478 100 100 Manufacturing. . . . . . . . 45 210,050 9 9 Food. . . . . . . . . . . . . 13 50,750 2 2 Apparel. . . . . . . . . . . 23 141,600 4 6 Other . . . . . . . . . . . . 9 17,700 2 1 Nonmanufacturing . . . . . 477 2,095,428 91 91 Mining . . . . . . . . . . . 2 267,500 (1) 3 Construction . . . . . . . 337 995,443 65 43 Railroads. . . . . . . . . . 12 189,183 2 8 Other transportation. . 20 156,662 4 7 Wholesale trade . . . . . 6 8,500 1 (1) Retail trade . . . . . . . . 37 314,100 7 14 Real estate . . . . . . . . 11 85,800 2 4 Hotels and motels. . . . 11 79,200 2 3 Business services . . . . 13 63,200 2 3 Health services . . . . . 8 65,100 2 3 Other . . . . . . . . . . . . 20 70,740 4 3 (1) = More than 0 and less than 0.05 percent. Source: U. S. Dept. of Labor, Bureau of Labor Statistics, unpublished data (Apr. 17, 1996) (available in Clerk of Court's case file).	The question in this case arises at the intersection of the Nation's labor and antitrust laws. A group of professional 234 football players brought this antitrust suit against football club owners. The club owners had bargained with the players' union over a wage issue until they reached impasse. The owners then had agreed among themselves (but not with the union) to implement the terms of their own last best bargaining offer. The question before us is whether federal labor laws shield such an agreement from antitrust attack. We believe that they do. This Court has previously found in the labor laws an implicit antitrust exemption that applies where needed to make the collective-bargaining process work. Like the Court of Appeals, we conclude that this need makes the exemption applicable in this case. I We can state the relevant facts briefly. In a collective-bargaining agreement between the National Football League (NFL or League), a group of football clubs, and the NFL Players Association, a labor union, expired. The NFL and the Players Association began to negotiate a new contract. In March 1989, during the negotiations, the NFL adopted Resolution G-2, a plan that would permit each club to establish a "developmental squad" of up to six rookie or "first-year" players who, as free agents, had failed to secure a position on a regular player roster. See App. 42. Squad members would play in practice games and sometimes in regular games as substitutes for injured players. Resolution G-2 provided that the club owners would pay all squad members the same weekly salary. The next month, April, the NFL presented the developmental squad plan to the Players Association. The NFL proposed a squad player salary of $1,000 per week. The Players Association disagreed. It insisted that the club owners give developmental squad players benefits and protections similar to those provided regular players, and that they leave individual squad members free to negotiate their own salaries. 235 Two months later, in June, negotiations on the issue of developmental squad salaries reached an impasse. The NFL then unilaterally implemented the developmental squad program by distributing to the clubs a uniform contract that embodied the terms of Resolution G-2 and the $1,000 proposed weekly salary. The League advised club owners that paying developmental squad players more or less than $1,000 per week would result in disciplinary action, including the loss of draft choices. In May 1990, 235 developmental squad players brought this antitrust suit against the League and its member clubs. The players claimed that their employers' agreement to pay them a $1,000 weekly salary violated the Sherman Act. See 15 U.S. C. 1 (forbidding agreements in restraint of trade). The Federal District Court denied the employers' claim of exemption from the antitrust laws; it permitted the case to reach the jury; and it subsequently entered judgment on a jury treble-damages award that exceeded $30 million. The NFL and its member clubs appealed. The Court of Appeals (by a split 2-to-1 vote) reversed. The majority interpreted the labor laws as "waiv[ing] antitrust liability for restraints on competition imposed through the collective-bargaining process, so long as such restraints operate primarily in a labor market characterized by collective bargainin" The court held, consequently, that the club owners were immune from antitrust liability. We granted certiorari to review that determination. Although we do not interpret the exemption as broadly as did the Appeals Court, we nonetheless find the exemption applicable, and we affirm that court's immunity conclusion. II The immunity before us rests upon what this Court has called the "nonstatutory" labor exemption from the antitrust laws. Constr. ; see also Meat ; Mine The Court has implied this exemption from federal labor statutes, which set forth a national labor policy favoring free and private collective bargaining, see 29 U.S. C. 151; ; which require goodfaith bargaining over wages, hours, and working conditions, see 29 U.S. C. 158(a)(5), 158(d); ; and which delegate related rulemaking and interpretive authority to the National Labor Relations Board (Board), see 29 U.S. C. 153; San Diego Building Trades This implicit exemption reflects both history and logic. As a matter of history, Congress intended the labor statutes (from which the Court has implied the exemption) in part to adopt the views of dissenting Justices in Printing Press which Justices had urged the Court to interpret broadly a different explicit "statutory" labor exemption that Congress earlier (in 1914) had written directly into the antitrust laws. (interpreting 20 of the Clayton Act, 29 U.S. C. 52); see also United In the 1930's, when it subsequently enacted the labor statutes, Congress, as in 1914, hoped to prevent judicial use of antitrust law to resolve labor disputesa kind of dispute normally inappropriate for antitrust law resolution. See Jewel ; Marine ; A. Cox, Law and the National Labor Policy 3-8 ; cf. (explicit "statutory" labor exemption reflected view that "Congress, not the judges, was the body which should declare what public policy in regard to the industrial struggle demands"). The implicit ("nonstatutory") exemption interprets the labor statutes in 237 accordance with this intent, namely, as limiting an antitrust court's authority to determine, in the area of industrial conflict, what is or is not a "reasonable" practice. It thereby substitutes legislative and administrative labor-related determinations for judicial antitrust-related determinations as to the appropriate legal limits of industrial conflict. See Jewel As a matter of logic, it would be difficult, if not impossible, to require groups of employers and employees to bargain together, but at the same time to forbid them to make among themselves or with each other any of the competitionrestricting agreements potentially necessary to make the process work or its results mutually acceptable. Thus, the implicit exemption recognizes that, to give effect to federal labor laws and policies and to allow meaningful collective bargaining to take place, some restraints on competition imposed through the bargaining process must be shielded from antitrust sanctions. See at ; Jewel ; ). The petitioners and their supporters concede, as they must, the legal existence of the exemption we have described. They also concede that, where its application is necessary to make the statutorily authorized collectivebargaining process work as Congress intended, the exemption must apply both to employers and to employees. 238 Accord, Volkswagenwerk ; Jewel ; Brief for AFL-CIO as Amicus Curiae in Associated Gen. Contractors of Cal., v. Carpenters, O. T. 1981, No. 81-334, pp. 16-17; see also P. & H. Hovenkamp, Antitrust Law ¶ 229'd ( Supp.) (collecting recent Court of Appeals cases); cf. H. A. Artists & Associates, Nor does the dissent take issue with these basic principles. See post, at 253-254. Consequently, the question before us is one of determining the exemption's scope: Does it apply to an agreement among several employers bargaining together to implement after impasse the terms of their last best good-faith wage offer? We assume that such conduct, as practiced in this case, is unobjectionable as a matter of labor law and policy. On that assumption, we conclude that the exemption applies. Labor law itself regulates directly, and considerably, the kind of behavior here at issuethe postimpasse imposition of a proposed employment term concerning a mandatory subject of bargainin Both the Board and the courts have held that, after impasse, labor law permits employers unilaterally to implement changes in pre-existing conditions, but only insofar as the new terms meet carefully circumscribed conditions. For example, the new terms must be "reasonably comprehended" within the employer's preimpasse proposals (typically the last rejected proposals), lest by imposing more or less favorable terms, the employer unfairly undermined the union's status. Storer Communications, 294 N. L. R. B. 1090 (1989); Taft Broadcasting Co., 163 N. L. R. B. 475, 478 (1967), enf'd, 3 F.2d ; see also The collective-bargaining proceeding itself must be free of 239 any unfair labor practice, such as an employer's failure to have bargained in good faith. See Akron Novelty Mf Co., 224 N. L. R. B. 998, 1002 (1976) (where employer has not bargained in good faith, it may not implement a term of employment); 1 P. The Developing Labor Law 697 These regulations reflect the fact that impasse and an accompanying implementation of proposals constitute an integral part of the bargaining process. See Bonanno Serv., 243 N. L. R. B. 1093, 1094 (describing use of impasse as a bargaining tactic), enf'd, aff'd, ; Colorado-Ute Elec. Assn., N. L. R. B. 607, 609 (1989), enf.denied on other grounds, cert. denied, Although the case law we have cited focuses upon bargaining by a single employer, no one here has argued that labor law does, or should, treat multi employer bargaining differently in this respect. Indeed, Board and court decisions suggest that the joint implementation of proposed terms after impasse is a familiar practice in the context of multiemployer bargainin See, e. El Cerrito Mill & Lumber Co., N. L. R. B. 1005 ; Paramount Liquor Co., 307 N. L. R. B. 676, 686 ; NKS Distributors, 304 N. L. R. B. 338, 340-341 rev'd, ; Sage Development Co., 301 N. L. R. B. 1173, 1175 ; Walker Constr. Co., 297 N. L. R. B. 746, 748 (1990), enf'd, ; Food Employers Council, 293 N. L. R. B. 333, 334, 345-346 (1989); Tile, Terazzo & Marble Contractors Assn., 287 N. L. R. B. 769, 772 enf'd, cert. denied, ; Salinas Valley Ford Sales, 279 N. L. R. B. 679, 686, 690 ; Carlsen Porsche Audi, 266 N. L. R. B. 141, 152-153 (1983); Typographic Service Co., 238 N. L. R. B. 1565 (1978); United Fire Proof Warehouse ; Cuyamaca Meats, aff'd, cert. denied, We proceed on that assumption. Multiemployer bargaining itself is a well-established, important, pervasive method of collective bargaining, offering advantages to both management and labor. See Appendix, infra, p. 251 (multiemployer bargaining accounts for more than 40% of major collective-bargaining agreements, and is used in such industries as construction, transportation, retail trade, clothing manufacture, and real estate, as well as professional sports); (Congress saw multiemployer bargaining as "a vital factor in the effectuation of the national policy of promoting labor peace through strengthened collective bargaining"); Charles D. Bonanno Service, v.NLRB, (multiemployer bargaining benefits both management and labor, by saving bargaining resources, by encouraging development of industry-wide worker benefits programs that smaller employers could not otherwise afford, and by inhibiting employer competition at the workers' expense); Brief for Respondent NLRB in Bonanno O. T. 1981, No. 80-931, p. 10, n. 7 ; General Subcommittee on Labor, House Committee on Education and Labor, Multiemployer Association Bargaining and its Impact on the Collective Bargaining Process, 88th Con, 2d Sess., 10-19, 32-33 ; see also C. Bonnett, Employers' Associations in the United States: A Study of Typical Associations (1922) (history). The upshot is that the practice at issue here plays a significant role in a collective-bargaining process that itself constitutes an important part of the Nation's industrial relations system. In these circumstances, to subject the practice to antitrust law is to require antitrust courts to answer a host of important practical questions about how collective bargaining over 241 wages, hours, and working conditions is to proceedthe very result that the implicit labor exemption seeks to avoid. And it is to place in jeopardy some of the potentially beneficial labor-related effects that multiemployer bargaining can achieve. That is because unlike labor law, which sometimes welcomes anticompetitive agreements conducive to industrial harmony, antitrust law forbids all agreements among competitors (such as competing employers) that unreasonably lessen competition among or between them in virtually any respect whatsoever. See, e. Paramount Famous Lasky Antitrust law also sometimes permits judges or juries to premise antitrust liability upon little more than uniform behavior among competitors, preceded by conversations implying that later uniformity might prove desirable, see, e. United ; United cert. denied, or accompanied by other conduct that in context suggests that each competitor failed to make an independent decision, see, e. American Tobacco ; United ; Interstate See generally 6 P. Antitrust Law ¶¶ 1416-1427 ; Turner, The Definition of Agreement Under the Sherman Act: Conscious Parallelism and Refusals to Deal, If the antitrust laws apply, what are employers to do once impasse is reached? If all impose terms similar to their last joint offer, they invite an antitrust action premised upon identical behavior (along with prior or accompanying conversations) as tending to show a common understanding or agreement. If any, or all, of them individually impose terms that differ significantly from that offer, they invite an unfair 242 labor practice charge. Indeed, how can employers safely discuss their offers together even before a bargaining impasse occurs? A preimpasse discussion about, say, the practical advantages or disadvantages of a particular proposal invites a later antitrust claim that they agreed to limit the kinds of action each would later take should an impasse occur. The same is true of postimpasse discussions aimed at renewed negotiations with the union. Nor would adherence to the terms of an expired collective-bargaining agreement eliminate a potentially plausible antitrust claim charging that they had "conspired" or tacitly "agreed" to do so, particularly if maintaining the status quo were not in the immediate economic self-interest of some. Cf. Interstate ; 6 All this is to say that to permit antitrust liability here threatens to introduce instability and uncertainty into the collectivebargaining process, for antitrust law often forbids or discourages the kinds of joint discussions and behavior that the collective-bargaining process invites or requires. We do not see any obvious answer to this problem. We recognize, as the Government suggests, that, in principle, antitrust courts might themselves try to evaluate particular kinds of employer understandings, finding them "reasonable" (hence lawful) where justified by collective-bargaining necessity. But any such evaluation means a web of detailed rules spun by many different nonexpert antitrust judges and juries, not a set of labor rules enforced by a single expert administrative body, namely the Board. The labor laws give the Board, not antitrust courts, primary responsibility for policing the collective-bargaining process. And one of their objectives was to take from antitrust courts the authority to determine, through application of the antitrust laws, what is socially or economically desirable collective-bargaining policy. See ; see also Jewel -719 243 III Both petitioners and their supporters advance several suggestions for drawing the exemption boundary line short of this case. We shall explain why we find them unsatisfactory. A Petitioners claim that the implicit exemption applies only to labor-management agreements a limitation that they deduce from case law language, see, e. 421 U. S., at (emphasis added), and from a proposed principlethat the exemption must rest upon labor-management consent. The language, however, reflects only the fact that the cases previously before the Court involved collective-bargaining agreements, see ; ; Jewel ; the language does not reflect the exemption's rationale, see Nor do we see how an exemption limited by petitioners' principle of labor-management consent could work. One cannot mean the principle literallythat the exemption applies only to understandings embodied in a collectivebargaining agreementfor the collective-bargaining process may take place before the making of any agreement or after an agreement has expired. Yet a multiemployer bargaining process itself necessarily involves many procedural and substantive understandings among participating employers as well as with the union. Petitioners cannot rescue their principle by claiming that the exemption applies only insofar as both labor and management consent to those understandings. Often labor will not (and should not) consent to certain common bargaining positions that employers intend to maintain. Cf. & Hovenkamp, Antitrust Law ¶ 229'd, at 277 ("[J]oint employer preparation and bargaining in the context of a formal multi-employer bargaining unit is clearly exempt"). Similarly, labor need not consent to certain tactics that this Court has approved as part of the multiemployer 244 bargaining process, such as unit-wide lockouts and the use of temporary replacements. See ; Buffalo Petitioners cannot save their consent principle by weakening it, as by requiring union consent only to the multiemployer bargaining process itself. This general consent is automatically present whenever multiemployer bargaining takes place. See Hi-Way Billboards, 206 N. L. R. B. 22 (1973) (multiemployer unit "based on consent" and "established by an unequivocal agreement by the parties"), enf. denied on other grounds, ; Weyerhaeuser Co., 166 N. L. R. B. 299, 299-300 (1967). As so weakened, the principle cannot help decide which related practices are, or are not, subject to antitrust immunity. B The Government argues that the exemption should terminate at the point of impasse. After impasse, it says, "employers no longer have a duty under the labor laws to maintain the status quo," and "are free as a matter of labor law to negotiate individual arrangements on an interim basis with the union." Brief for United States et al. as Amici Curiae 17. Employers, however, are not completely free at impasse to act independently. The multiemployer bargaining unit ordinarily remains intact; individual employers cannot withdraw. Bonanno -413. The duty to bargain survives; employers must stand ready to resume collective bargainin See, e. Worldwide Detective Bureau, 296 N. L. R. B. 148, 155 (1989); Hi-Way Billboards, And individual employers can negotiate individual interim agreements with the union only insofar as those agreements are consistent with "the duty to abide by the results of group bargainin" Bonanno Regardless, the absence of a legal "duty" to act jointly is not determinative. This Court has implied antitrust immunities 245 that extend beyond statutorily required joint action to joint action that a statute "expressly or impliedly allows or assumes must also be immune." 1 P. & D. Turner, Antitrust Law ¶ 224, p. 145 (1978); see, e. Gordon v. New York Stock Exchange, ; United States v. National Assn. of Securities Dealers, More importantly, the simple "impasse" line would not solve the basic problem we have described Labor law permits employers, after impasse, to engage in considerable joint behavior, including joint lockouts and replacement hirin See, e. Indeed, as a general matter, labor law often limits employers to four options at impasse: (1) maintain the status quo, (2) implement their last offer, (3) lock out their workers (and either shut down or hire temporary replacements), or (4) negotiate separate interim agreements with the union. See generally 1 The Developing Labor Law, at 516-520, 696-699. What is to happen if the parties cannot reach an interim agreement? The other alternatives are limited. Uniform employer conduct is likely. Uniformityat least when accompanied by discussion of the matter invites antitrust attack. And such attack would ask antitrust courts to decide the lawfulness of activities intimately related to the bargaining process. The problem is aggravated by the fact that "impasse" is often temporary, see Bonanno ; W. Simkin 246 & N. Fidandis, Mediation and the Dynamics of Collective Bargaining 139-140 ; it may differ from bargaining only in degree, see 1 ; Taft Broadcasting Co., 163 N. L. R. B., at 478; it may be manipulated by the parties for bargaining purposes, see Bonanno ; and it may occur several times during the course of a single labor dispute, since the bargaining process is not over when the first impasse is reached, cf. J. Bartlett, Familiar Quotations 754:8 How are employers to discuss future bargaining positions during a temporary impasse? Consider, too, the adverse consequences that flow from failing to guess how an antitrust court would later draw the impasse line. Employers who erroneously concluded that impasse had not been reached would risk antitrust liability were they collectively to maintain the status quo, while employers who erroneously concluded that impasse had occurred would risk unfair labor practice charges for prematurely suspending multiemployer negotiations. The United States responds with suggestions for softening an "impasse" rule by extending the exemption after impasse "for such time as would be reasonable in the circumstances" for employers to consult with counsel, confirm that impasse has occurred, and adjust their business operations, Brief for United States et al. as Amici Curiae 24; by reestablishing the exemption once there is a "resumption of goodfaith bargaining," ; and by looking to antitrust law's "rule of reason" to shield"in some circumstances" such joint actions as the unit-wide lockout or the concerted maintenance of previously established joint benefit or retirement plans, But even as so modified, the impasserelated rule creates an exemption that can evaporate in the middle of the bargaining process, leaving later antitrust courts free to second-guess the parties' bargaining decisions 247 and consequently forcing them to choose their collectivebargaining responses in light of what they predict or fear that antitrust courts, not labor law administrators, will eventually decide. Cf. Dallas General Drivers, Warehousemen and Helpers, Local Union No. v. NLRB, ("The problem of deciding when further bargaining is futile is often difficult for the bargainers and is necessarily so for the Board. But in the whole complex of industrial relations few issues are less suited to appellate judicial appraisal or better suited to the expert experience of a board which deals constantly with such problems"). C Petitioners and their supporters argue in the alternative for a rule that would exempt postimpasse agreement about bargaining "tactics," but not postimpasse agreement about substantive "terms," from the reach of antitrust. See -1069 They recognize, however, that both the Board and the courts have said that employers can, and often do, employ the imposition of "terms" as a bargaining "tactic." See, e. American Ship Building ; ColoradoUte Elec. Assn., v. NLRB, cert. denied, ; -Wise, 309 N. L. R. B. 905, 921 ; Hi-Way Billboards, 206 N. L. R. B., ; Bonanno 243 N. L. R. B., at 1094. This concession as to joint "tactical" implementation would turn the presence of an antitrust exemption upon a determination of the employers' primary purpose or motive. See, e. But to ask antitrust courts, insulated from the bargaining process, to investigate an employer group's subjective motive is to ask them to conduct an inquiry often more amorphous than those we have previously discussed. And, in our view, a labor/ antitrust line drawn on such a basis would too often raise 248 the same related (previously discussed) problems. See 7, 241-242; Jewel (expressing concern about antitrust judges "roaming at large" through the bargaining process). D Petitioners make several other arguments. They point, for example, to cases holding applicable, in collectivebargaining contexts, general "backdrop" statutes, such as a state statute requiring a plant-closing employer to make employee severance payments, Fort Packing and a state statute mandating certain minimum health benefits, Metropolitan Ins. Those statutes, however, "`neither encourage[d] nor discourage[d] the collective-bargaining processes that are the subject of the [federal labor laws].' " Fort (quoting Metropolitan ). Neither did those statutes come accompanied with antitrust's labor-related history. Cf. 358 U. S., at -297 Petitioners also say that irrespective of how the labor exemption applies elsewhere to multiemployer collective bargaining, professional sports is "special." We can understand how professional sports may be special in terms of, say, interest, excitement, or concern. But we do not understand how they are special in respect to labor law's antitrust exemption. We concede that the clubs that make up a professional sports league are not completely independent economic competitors, as they depend upon a degree of cooperation for economic survival. National Collegiate Athletic ; App. 110-115 (declaration of NFL Commissioner). In the present context, however, that circumstance 249 makes the league more like a single bargaining employer, which analogy seems irrelevant to the legal issue before us. We also concede that football players often have special individual talents, and, unlike many unionized workers, they often negotiate their pay individually with their employers. See post, at 255 (Stevens, J., dissenting). But this characteristic seems simply a feature, like so many others, that might give employees (or employers) more (or less) bargaining power, that might lead some (or all) of them to favor a particular kind of bargaining, or that might lead to certain demands at the bargaining table. We do not see how it could make a critical legal difference in determining the underlying framework in which bargaining is to take place. See generally Jacobs & Winter, Antitrust Principles and Collective Bargaining by Athletes: Of Superstars in Peonage, 81 Yale L. J. 1 (1971). Indeed, it would be odd to fashion an antitrust exemption that gave additional advantages to professional football players (by virtue of their superior bargaining power) that transport workers, coal miners, or meat packers would not enjoy. The dissent points to other "unique features" of the parties' collective-bargaining relationship, which, in the dissent's view, make the case "atypical." Post, at 255. It says, for example, that the employers imposed the restraint simply to enforce compliance with league-wide rules, and that the bargaining consisted of nothing more than the sending of a "notice," and therefore amounted only to "so-called" bargainin Post, at 256-257. Insofar as these features underlie an argument for looking to the employers' true purpose, we have already discussed them. See Insofar as they suggest that there was not a genuine impasse, they fight the basic assumption upon which the District Court, the Court of Appeals, petitioners, and this Court rest the case. See ; 50 F.3d, at -1057; Pet. for Cert. i. Ultimately, we cannot find a satisfactory basis for distinguishing football players from 250 other organized workers. We therefore conclude that all must abide by the same legal rules. * * For these reasons, we hold that the implicit ("nonstatutory") antitrust exemption applies to the employer conduct at issue here. That conduct took place during and immediately after a collective-bargaining negotiation. It grew out of, and was directly related to, the lawful operation of the bargaining process. It involved a matter that the parties were required to negotiate collectively. And it concerned only the parties to the collective-bargaining relationship. Our holding is not intended to insulate from antitrust review every joint imposition of terms by employers, for an agreement among employers could be sufficiently distant in time and in circumstances from the collective-bargaining process that a rule permitting antitrust intervention would not significantly interfere with that process. See, e. ; El Cerrito Mill & Lumber Co., N. L. R. B., at 1006-1007 (suggesting that "extremely long" impasse, accompanied by "instability" or "defunctness" of multiemployer unit, might justify union withdrawal from group bargaining). We need not decide in this case whether, or where, within these extreme outer boundaries to draw that line. Nor would it be appropriate for us to do so without the detailed views of the Board, to whose "specialized judgment" Congress "intended to leave" many of the "inevitable questions concerning multiemployer bargaining bound to arise in the future." Buffalo ; see also Jewel n. 18. The judgment of the Court of Appeals is affirmed. It is so ordered. *251 APPENDIX TO OPINION OF THE COURT TABLE A Major Bargaining Units and Employment in Private Industry, by Type of Bargaining Unit, 1994. (Covers bargaining units of 1,000 or more workers.) Number Percent Type Units Employment Units Employment I 522 2,305,478 44 43 M&S 664 3,040,159 56 57 Total 1,186 5,345,637 100 100 I = Multiemployer. M = One company, more than one location. S = One company, single location. Source: U. S. Dept. of Labor, Bureau of Labor Statistics, unpublished data (Feb. 14, 1996) (available in Clerk of Court's case file). TABLE B Major Multiemployer Collective Bargaining Units and Employment in Private Industry, by Industry, 1994. (Covers bargaining units of 1,000 or more workers.) Number Percent Type Units Employment Units Employment All industries 522 2,305,478 100 100 Manufacturin 45 210,050 9 9 Food. 13 50,750 2 2 Apparel. 23 141,600 4 6 Other 9 17,700 2 1 Nonmanufacturing 477 2,0,428 91 91 Mining 2 267,500 (1) 3 Construction 337 9,443 65 43 Railroads. 12 189,183 2 8 Other transportation. 20 156,662 4 7 Wholesale trade 6 8,500 1 (1) Retail trade 37 314,100 7 14 Real estate 11 85,800 2 4 Hotels and motels. 11 79,200 2 3 Business services 13 63,200 2 3 Health services 8 65,100 2 3 Other 20 70,740 4 3 (1) = More than 0 and less than 0.05 percent. Source: U. S. Dept. of Labor, Bureau of Labor Statistics, unpublished data (Apr. 17, 1996) (available in Clerk of Court's case file).	2,102
Justice Stevens	dissenting	false	Brown v. Pro Football, Inc.	1996-06-20	null	https://www.courtlistener.com/opinion/118051/brown-v-pro-football-inc/	https://www.courtlistener.com/api/rest/v3/clusters/118051/	1,996	1995-078	1	8	1	In his classic dissent in Lochner v. New York, 198 U.S. 45, 75 (1905), Justice Holmes reminded us that our disagreement with the economic theory embodied in legislation should not affect our judgment about its constitutionality. It is equally important, of course, to be faithful to the economic theory underlying broad statutory mandates when we are construing their impact on areas of the economy not specifically addressed by their texts. The unique features of this case lead me to conclude that the Court has reached a decision that conflicts with the basic purpose of both the antitrust laws and the national labor policy expressed in a series of congressional enactments. I The basic premise underlying the Sherman Act is the assumption that free competition among business entities will produce the best price levels. National Soc. of Professional Engineers v. United States, 435 U.S. 679, 695 (1978). Collusion among competitors, it is believed, may produce prices that harm consumers. United States v. SoconyVacuum Oil Co., 310 U.S. 150, 226, n. 59 (1940). Similarly, the Court has held, a market wide agreement among employers setting wages at levels that would not prevail in a free market may violate the Sherman Act. Anderson v. Shipowners Assn. of Pacific Coast, 272 U.S. 359 (1926). The jury's verdict in this case has determined that the marketwide agreement among these employers fixed the salaries of the replacement players at a dramatically lower level than would obtain in a free market. While the special characteristics of this industry may provide a justification for the agreement under the rule of reason, see National Collegiate Athletic Assn. v. Board of Regents of Univ. of Okla., 468 U.S. 85, 100-104 (1984), at this stage of the proceeding our analysis of the exemption issue must accept the premise that the agreement is unlawful unless it is exempt. 253 The basic premise underlying our national labor policy is that unregulated competition among employees and applicants for employment produces wage levels that are lower than they should be.[1] Whether or not the premise is true in fact, it is surely the basis for the statutes that encourage and protect the collective-bargaining process, including the express statutory exemptions from the antitrust laws that Congress enacted in order to protect union activities.[2] Those statutes were enacted to enable collective action by union members to achieve wage levels that are higher than would be available in a free market. See Trainmen v. Chicago R. & I. R. Co., 353 U.S. 30, 40 (1957). The statutory labor exemption protects the right of workers to act collectively to seek better wages, but does not 254 "exempt concerted action or agreements between unions and nonlabor parties." Connell Constr. Co. v. Plumbers, 421 U.S. 616, 621-622 (1975). It is the judicially crafted, nonstatutory labor exemption that serves to accommodate the conflicting policies of the antitrust and labor statutes in the context of action between employers and unions. Ibid. The limited judicial exemption complements its statutory counterpart by ensuring that unions which engage in collective bargaining to enhance employees' wages may enjoy the benefits of the resulting agreements. The purpose of the labor laws would be frustrated if it were illegal for employers to enter into industrywide agreements providing supracompetitive wages for employees. For that reason, we have explained that "a proper accommodation between the congressional policy favoring collective bargaining under the NLRA and the congressional policy favoring free competition in business markets requires that some union-employer agreements be accorded a limited nonstatutory exemption from antitrust sanctions." Id., at 622. Consistent with basic labor law policies, I agree with the Court that the judicially crafted labor exemption must also cover some collective action that employers take in response to a collective-bargaining agent's demands for higher wages. Immunizing such action from antitrust scrutiny may facilitate collective bargaining over labor demands. So, too, may immunizing concerted employer action designed to maintain the integrity of the multiemployer bargaining unit, such as lockouts that are imposed in response to "a union strike tactic which threatens the destruction of the employers' interest in bargaining on a group basis." NLRB v. Truck Drivers, 353 U.S. 87, 93 (1957). In my view, however, neither the policies underlying the two separate statutory schemes, nor the narrower focus on the purpose of the nonstatutory exemption, provides a justification for exempting from antitrust scrutiny collective action initiated by employers to depress wages below the level 255 that would be produced in a free market. Nor do those policies support a rule that would allow employers to suppress wages by implementing noncompetitive agreements among themselves on matters that have not previously been the subject of either an agreement with labor or even a demand by labor for inclusion in the bargaining process. That, however, is what is at stake in this litigation. II In light of the accommodation that has been struck between antitrust and labor law policy, it would be most ironic to extend an exemption crafted to protect collective action by employees to protect employers acting jointly to deny employees the opportunity to negotiate their salaries individually in a competitive market. Perhaps aware of the irony, the Court chooses to analyze this case as though it represented a typical impasse in an unexceptional multiemployer bargaining process. In so doing, it glosses over three unique features of the case that are critical to the inquiry into whether the policies of the labor laws require extension of the nonstatutory labor exemption to this atypical case. First, in this market, unlike any other area of labor law implicated in the cases cited by the Court, player salaries are individually negotiated. The practice of individually negotiating player salaries prevailed even prior to collective bargaining.[3] The players did not challenge the prevailing 256 practice because, unlike employees in most industries, they want their compensation to be determined by the forces of the free market rather than by the process of collective bargaining. Thus, although the majority professes an inability to understand anything special about professional sports that should affect the framework of labor negotiations, ante, at 248-249, in this business it is the employers, not the employees, who seek to impose a noncompetitive uniform wage on a segment of the market and to put an end to competitive wage negotiations. Second, respondents concede that the employers imposed the wage restraint to force owners to comply with leaguewide rules that limit the number of players that may serve on a team, not to facilitate a stalled bargaining process, or to revisit any issue previously subjected to bargaining. Brief for Respondents 4. The employers could have confronted the culprits directly by stepping up enforcement of roster limits. They instead chose to address the problem by unilaterally preventing players from individually competing in the labor market. Third, although the majority asserts that the "club owners had bargained with the players' union over a wage issue until they reached impasse," ante, at 234, that hardly constitutes a complete description of what transpired. When the employers' representative advised the union that they proposed to pay the players a uniform wage determined by the owners, the union promptly and unequivocally responded that their proposal was inconsistent with the "principle" of individual salary negotiation that had been accepted in the past and that predated collective bargaining.[4] The so-called "bargaining" 257 that followed amounted to nothing more than the employers' notice to the union that they had decided to implement a decision to replace individual salary negotiations with a uniform wage level for a specific group of players.[5] Given these features of the case, I do not see why the employers should be entitled to a judicially crafted exemption from antitrust liability. We have explained that "[t]he nonstatutory exemption has its source in the strong labor policy favoring the association of employees to eliminate competition over wages and working conditions." Connell Constr. Co., 421 U. S., at 622. I know of no similarly strong labor policy that favors the association of employers to eliminate a competitive method of negotiating wages that predates collective bargaining and that labor would prefer to preserve. Even if some collective action by employers may justify an exemption because it is necessary to maintain the "integrity of the multiemployer bargaining unit," NLRB v. Brown, 380 U.S. 278, 289 (1965), no such justification exists here. The employers imposed a fixed wage even though there was no dispute over the pre-existing principle that player salaries should be individually negotiated. They sought only to prevent certain owners from evading roster limits and thereby gaining an unfair advantage. Because "the employer's interest is a competitive interest rather than an interest in regulating its own labor relations," Mine Workers v. Pennington, 381 U.S. 657, 667 (1965), there would seem to be no 258 more reason to exempt this concerted, anticompetitive employer action from the antitrust laws than the action held unlawful in Radovich v. National Football League, 352 U.S. 445 (1957). The point of identifying the unique features of this case is not, as the Court suggests, to make the case that professional football players, alone among workers, should be entitled to enforce the antitrust laws against anticompetitive collective employer action. Ante, at 249. Other employees, no less than well-paid athletes, are entitled to the protections of the antitrust laws when their employers unite to undertake anticompetitive action that causes them direct harm and alters the state of employer-employee relations that existed prior to unionization. Here that alteration occurred because the wage terms that the employers unilaterally imposed directly conflict with a pre-existing principle of agreement between the bargaining parties. In other contexts, the alteration may take other similarly anticompetitive and unjustifiable forms. III Although exemptions should be construed narrowly, and judicially crafted exemptions more narrowly still, the Court provides a sweeping justification for the exemption that it creates today. The consequence is a newly minted exemption that, as I shall explain, the Court crafts only by ignoring the reasoning of one of our prior decisions in favor of the views of the dissenting Justice in that case. Of course, the Court actually holds only that this new exemption applies in cases such as the present in which the parties to the bargaining process are affected by the challenged anticompetitive conduct. Ante, at 250. But that welcome limitation on its opinion fails to make the Court's explanation of its result in this case any more persuasive. The Court explains that the nonstatutory labor exemption serves to ensure that "antitrust courts" will not end up substituting their views of labor policy for those of either the 259 Labor Board or the bargaining parties. Ante, at 236-237. The Court concludes, therefore, that almost any concerted action by employers that touches on a mandatory subject of collective bargaining, no matter how obviously offensive to the policies underlying the Nation's antitrust statutes, should be immune from scrutiny so long as a collectivebargaining process is in place. It notes that a contrary conclusion would require "antitrust courts, insulated from the bargaining process, to investigate an employer group's subjective motive," a task that it believes too "amorphous" to be permissible. Ante, at 247. The argument that "antitrust courts" should be kept out of the collective-bargaining process has a venerable lineage. See Duplex Printing Press Co. v. Deering, 254 U.S. 443, 483-488 (1921) (Brandeis, J., joined by Holmes and Clarke, JJ., dissenting). Our prior precedents subscribing to its basic point, however, do not justify the conclusion that employees have no recourse other than the Labor Board when employers collectively undertake anticompetitive action. In fact, they contradict it. We have previously considered the scope of the nonstatutory labor exemption only in cases involving challenges to anticompetitive agreements between unions and employers brought by other employers not parties to those agreements. Ante, at 243. Even then, we have concluded that the exemption does not always apply. See Mine Workers v. Pennington, 381 U. S., at 663. As Pennington explained, the mere fact that an antitrust challenge touches on an issue, such as wages, that is subject to mandatory bargaining does not suffice to trigger the judicially fashioned exemption. Id., at 664. Moreover, we concluded that the exemption should not obtain in Pennington itself only after we examined the motives of one of the parties to the bargaining process. Id., at 667. The Court's only attempt to square its decision with Pennington occurs at the close of its opinion. It concludes that 260 the exemption applies because the employers' action "grew out of, and was directly related to, the lawful operation of the bargaining process," "[i]t involved a matter that the parties were required to negotiate collectively," and that "concerned only the parties to the collective-bargaining relationship." Ante, at 250. As to the first two qualifiers, the same could be said of Pennington. Indeed, the same was said and rejected in Pennington. "This is not to say that an agreement resulting from union-employer negotiations is automatically exempt from Sherman Act scrutiny simply because the negotiations involve a compulsory subject of bargaining, regardless of the subject or the form and content of the agreement." 381 U.S., at 664-665. The final qualifier does distinguish Pennington, but only partially so. To determine whether the exemption applied in Pennington, we undertook a detailed examination into whether the policies of labor law so strongly supported the agreement struck by the bargaining parties that it should be immune from antitrust scrutiny. We concluded that because the agreement affected employers not parties to the bargaining process, labor law policies could not be understood to require the exemption. Here, however, the Court does not undertake a review of labor law policy to determine whether it would support an exemption for the unilateral imposition of anticompetitive wage terms by employers on a union. The Court appears to conclude instead that the exemption should apply merely because the employers' action was implemented during a lawful negotiating process concerning a mandatory subject of bargaining. Thus, the Court's analysis would seem to constitute both an unprecedented expansion of a heretofore limited exemption, and an unexplained repudiation of the reasoning in a prior, nonconstitutional decision that Congress itself has not seen fit to override. 261 The Court nevertheless contends that the "rationale" of our prior cases supports its approach. Ante, at 243. As support for that contention, it relies heavily on the views espoused in Justice Goldberg's separate opinion in Meat Cutters v. Jewel Tea Co., 381 U.S. 676 (1965). At five critical junctures in its opinion, see ante, at 236, 237-238, 242, 247248, the Court invokes that separate concurrence to explain why, for purposes of applying the nonstatutory labor exemption, labor law policy admits of no distinction between collective employer action taken in response to labor demands and collective employer action of the kind we consider here. It should be remembered that Jewel Tea concerned only the question whether an agreement between employers and a union may be exempt, and that even then the Court did not accept the broad antitrust exemption that Justice Goldberg advocated. Instead, Justice White, the author of Pennington, writing for Chief Justice Warren and Justice Brennan, explained that even in disputes over the lawfulness of agreements about terms that are subject to mandatory bargaining, courts must examine the bargaining process to determine whether antitrust scrutiny should obtain. Jewel Tea, 381 U. S., at 688-697. "The crucial determinant is not the form of the agreement e. g., prices or wagesbut its relative impact on the product market and the interests of union members. " Id., at 690, n. 5 (emphasis added). Moreover, the three dissenters, Justices Douglas, Clark, and Black, concluded that the union was entitled to no immunity at all. Id., at 735-738. It should also be remembered that Justice Goldberg used his separate opinion in Jewel Tea to explain his reasons for dissenting from the Court's opinion in Pennington. He explained that the Court's approach in Pennington was unjustifiable precisely because it permitted "antitrust courts" to reexamine the bargaining process. The Court fails to explain its apparent substitution in this case of Justice Goldberg's 262 understanding of the exemption, an understanding previously endorsed by only two other Justices, for the one adopted by the Court in Pennington. The Court's silence is all the more remarkable in light of the patent factual distinctions between Jewel Tea and the present case. It is not at all clear that Justice Goldberg himself understood his expansive rationale to require application of the exemption in circumstances such as those before us here. Indeed, the main theme of his opinion was that the antitrust laws should not be used to circumscribe bargaining over union demands. Jewel Tea, 381 U. S., at 723-725. Moreover, Justice Goldberg proved himself to be a most unreliable advocate for the sweeping position that the Court attributes to him. Not long after leaving the Court, Justice Goldberg served as counsel for Curt Flood, a professional baseball player who contended that major league baseball's reserve clause violated the antitrust laws. Flood v. Kuhn, 407 U.S. 258 (1972). Although the Flood case primarily concerned whether professional baseball should be exempt from antitrust law altogether, see Federal Baseball Club of Baltimore, Inc. v. National League of Professional Baseball Clubs, 259 U.S. 200 (1922); Toolson v. New York Yankees, Inc., 346 U.S. 356 (1953), the labor law dimensions of the case did not go unnoticed. The article that first advanced the expansive view of the nonstatutory labor exemption that the Court appears now to endorse was written shortly after this Court granted certiorari in Flood, see Jacobs & Winter, Antitrust Principles and Collective Bargaining by Athletes: Of Superstars in Peonage, 81 Yale L. J. 1 (1971), and the parties to the case addressed the very questions now before us. Aware of both this commentary, and, of course, his own prior opinion in Jewel Tea, Justice Goldberg explained in his brief to this Court why baseball's reserve clause should not be protected from antitrust review by the nonstatutory labor exemption. 263 "This Court has held that even a labor organization, the principal intended beneficiary of the so-called labor exemption, may not escape antitrust liability when it acts, not unilaterally and in the sole interest of its own members, but in concert with employers `to prescribe labor standards outside the bargaining unit[.]' And this is so even when the issue is so central to bargaining as wages. Mine Workers v. Pennington, 381 U. S. at 668. Compare Meat Cutters v. Jewel Tea Co., 381 U.S. 676 (1965). See Ramsey v. Mine Workers, 401 U.S. 302, 307 (1971). . . . "The separate opinion on which respondents focus did express the view that `collective bargaining activity on mandatory subjects of bargaining' is exempt from antitrust regulation, without regard to whether the union conduct involved is `unilateral.' Meat Cutters v. Jewel Tea Co., 381 U. S. at 732 (concurring opinion). But the author of that opinion agreed with the majority that agreements between unions and nonlabor groups on hard-core restraints like `price-fixing and market allocation' were not exempt. 381 U.S. at 733. And there is no support in any of the opinions filed in Meat Cutters for Baseball's essential, if tacit, contention that unilateral, hard-core anticompetitive activity by employers acting alonethe present caseis somehow exempt from antitrust regulation." Reply Brief for Petitioner in Flood v. Kuhn, O. T. 1971, No. 71-32, pp. 13-14. Moreover, Justice Goldberg explained that the extension of antitrust immunity to unilateral, anticompetitive employer action would be particularly inappropriate because baseball's reserve clause predated collective bargaining. "This case is in fact much clearer than Pennington, Meat Cutters, or Ramsey, for petitioner does not challenge the fruits of collective bargaining activity. He seeks relief from a schemethe reserve systemwhich 264 Baseball admits has been in existence for nearly a century, and which the trial court expressly found was `created and imposed by the club owners long before the arrival of collective bargaining.' " Id., at 14. I would add only that this case is in fact much clearer than Flood, for there the owners sought only to preserve a restraint on competition to which the union had not agreed, while here they seek to create one. Adoption of Justice Goldberg's views would mean, of course, that in some instances "antitrust courts" would have to displace the authority of the Labor Board. The labor laws do not exist, however, to ensure the perpetuation of the Board's authority. That is why we have not previously adopted the Court's position. That is also why in other contexts we have not thought the mere existence of a collectivebargaining agreement sufficient to immunize employers from background laws that are similar to the Sherman Act. See Fort Halifax Packing Co. v. Coyne, 482 U.S. 1 (1987); Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724 (1985).[6] 265 IV Congress is free to act to exempt the anticompetitive employer conduct that we review today. In the absence of such action, I do not believe it is for us to stretch the limited exemption that we have fashioned to facilitate the express statutory exemption created for labor's benefit so that unions must strike in order to restore a prior practice of individually negotiating salaries. I therefore agree with the position that the District Court adopted below. "Because the developmental squad salary provisions were a new concept and not a change in terms of the expired collective bargaining agreement, the policy behind continuing the nonstatutory labor exemption for the terms of a collective bargaining agreement after expiration (to foster an atmosphere conducive to the negotiation of a new collective bargaining agreement) does not apply. To hold that the nonstatutory labor exemption extends to shield the NFL from antitrust liability for imposing restraints never before agreed to by the union would not only infringe on the union's freedom to contract, H. K. Porter Co. v. NLRB, 397 U. S. at 108 . . . (one of fundamental policies of NLRA is freedom of contract), but would also contradict the very purpose of the antitrust exemption by not promoting execution of a collective bargaining agreement with terms mutually 266 acceptable to employer and labor union alike. Labor unions would be unlikely to sign collective bargaining agreements with employers if they believed that they would be forced to accept terms to which they never agreed." 782 F. Supp. 125, 139 (DC 1991) (footnote omitted). Accordingly, I respectfully dissent.	In his classic dissent in Justice Holmes reminded us that our disagreement with the economic theory embodied in legislation should not affect our judgment about its constitutionality. It is equally important, of course, to be faithful to the economic theory underlying broad statutory mandates when we are construing their impact on areas of the economy not specifically addressed by their texts. The unique features of this case lead me to conclude that the Court has reached a decision that conflicts with the basic purpose of both the antitrust laws and the national labor policy expressed in a series of congressional enactments. I The basic premise underlying the Sherman Act is the assumption that free competition among business entities will produce the best price levels. National Soc. of Professional Collusion among competitors, it is believed, may produce prices that harm consumers. United Similarly, the Court has held, a market wide agreement among employers setting wages at levels that would not prevail in a free market may violate the Sherman Act. The jury's verdict in this case has determined that the marketwide agreement among these employers fixed the salaries of the replacement players at a dramatically lower level than would obtain in a free market. While the special characteristics of this industry may provide a justification for the agreement under the rule of reason, see National Collegiate Athletic at this stage of the proceeding our analysis of the exemption issue must accept the premise that the agreement is unlawful unless it is 253 The basic premise underlying our national labor policy is that unregulated competition among employees and applicants for employment produces wage levels that are lower than they should be.[1] Whether or not the premise is true in fact, it is surely the basis for the statutes that encourage and protect the collective-bargaining process, including the express statutory exemptions from the antitrust laws that Congress enacted in order to protect union activities.[2] Those statutes were enacted to enable collective action by union members to achieve wage levels that are higher than would be available in a free market. See The statutory labor exemption protects the right of workers to act collectively to seek better wages, but does not 254 "exempt concerted action or agreements between unions and nonlabor parties." Connell Constr. (19). It is the judicially crafted, nonstatutory labor exemption that serves to accommodate the conflicting policies of the antitrust and labor statutes in the context of action between employers and unions. The limited judicial exemption complements its statutory counterpart by ensuring that unions which engage in collective bargaining to enhance employees' wages may enjoy the benefits of the resulting agreements. The purpose of the labor laws would be frustrated if it were illegal for employers to enter into industrywide agreements providing supracompetitive wages for employees. For that reason, we have explained that "a proper accommodation between the congressional policy favoring collective bargaining under the NLRA and the congressional policy favoring free competition in business markets requires that some union-employer agreements be accorded a limited nonstatutory exemption from antitrust sanctions." Consistent with basic labor law policies, I agree with the Court that the judicially crafted labor exemption must also cover some collective action that employers take in response to a collective-bargaining agent's demands for higher wages. Immunizing such action from antitrust scrutiny may facilitate collective bargaining over labor demands. So, too, may immunizing concerted employer action designed to maintain the integrity of the multiemployer bargaining unit, such as lockouts that are imposed in response to "a union strike tactic which threatens the destruction of the employers' interest in bargaining on a group basis." In my view, however, neither the policies underlying the two separate statutory schemes, nor the narrower focus on the purpose of the nonstatutory exemption, provides a justification for exempting from antitrust scrutiny collective action initiated by employers to depress wages below the level 255 that would be produced in a free market. Nor do those policies support a rule that would allow employers to suppress wages by implementing noncompetitive agreements among themselves on matters that have not previously been the subject of either an agreement with labor or even a demand by labor for inclusion in the bargaining process. That, however, is what is at stake in this litigation. II In light of the accommodation that has been struck between antitrust and labor law policy, it would be most ironic to extend an exemption crafted to protect collective action by employees to protect employers acting jointly to deny employees the opportunity to negotiate their salaries individually in a competitive market. Perhaps aware of the irony, the Court chooses to analyze this case as though it represented a typical impasse in an unexceptional multiemployer bargaining process. In so doing, it glosses over three unique features of the case that are critical to the inquiry into whether the policies of the labor laws require extension of the nonstatutory labor exemption to this atypical case. First, in this market, unlike any other area of labor law implicated in the cases cited by the Court, player salaries are individually negotiated. The practice of individually negotiating player salaries prevailed even prior to collective bargaining.[3] The players did not challenge the prevailing 256 practice because, unlike employees in most industries, they want their compensation to be determined by the forces of the free market rather than by the process of collective bargaining. Thus, although the majority professes an inability to understand anything special about professional sports that should affect the framework of labor negotiations, ante, at 248-249, in this business it is the employers, not the employees, who seek to impose a noncompetitive uniform wage on a segment of the market and to put an end to competitive wage negotiations. Second, respondents concede that the employers imposed the wage restraint to force owners to comply with leaguewide rules that limit the number of players that may serve on a team, not to facilitate a stalled bargaining process, or to revisit any issue previously subjected to bargaining. Brief for Respondents 4. The employers could have confronted the culprits directly by stepping up enforcement of roster limits. They instead chose to address the problem by unilaterally preventing players from individually competing in the labor market. Third, although the majority asserts that the "club owners had bargained with the players' union over a wage issue until they reached impasse," ante, at 234, that hardly constitutes a complete description of what transpired. When the employers' representative advised the union that they proposed to pay the players a uniform wage determined by the owners, the union promptly and unequivocally responded that their proposal was inconsistent with the "principle" of individual salary negotiation that had been accepted in the past and that predated collective bargaining.[4] The so-called "bargaining" 257 that followed amounted to nothing more than the employers' notice to the union that they had decided to implement a decision to replace individual salary negotiations with a uniform wage level for a specific group of players.[5] Given these features of the case, I do not see why the employers should be entitled to a judicially crafted exemption from antitrust liability. We have explained that "[t]he nonstatutory exemption has its source in the strong labor policy favoring the association of employees to eliminate competition over wages and working conditions." Connell Constr. 421 U. S., I know of no similarly strong labor policy that favors the association of employers to eliminate a competitive method of negotiating wages that predates collective bargaining and that labor would prefer to preserve. Even if some collective action by employers may justify an exemption because it is necessary to maintain the "integrity of the multiemployer bargaining unit," no such justification exists here. The employers imposed a fixed wage even though there was no dispute over the pre-existing principle that player salaries should be individually negotiated. They sought only to prevent certain owners from evading roster limits and thereby gaining an unfair advantage. Because "the employer's interest is a competitive interest rather than an interest in regulating its own labor relations," Mine there would seem to be no 258 more reason to exempt this concerted, anticompetitive employer action from the antitrust laws than the action held unlawful in The point of identifying the unique features of this case is not, as the Court suggests, to make the case that professional football players, alone among workers, should be entitled to enforce the antitrust laws against anticompetitive collective employer action. Ante, at 249. Other employees, no less than well-paid athletes, are entitled to the protections of the antitrust laws when their employers unite to undertake anticompetitive action that causes them direct harm and alters the state of employer-employee relations that existed prior to unionization. Here that alteration occurred because the wage terms that the employers unilaterally imposed directly conflict with a pre-existing principle of agreement between the bargaining parties. In other contexts, the alteration may take other similarly anticompetitive and unjustifiable forms. III Although exemptions should be construed narrowly, and judicially crafted exemptions more narrowly still, the Court provides a sweeping justification for the exemption that it creates today. The consequence is a newly minted exemption that, as I shall explain, the Court crafts only by ignoring the reasoning of one of our prior decisions in favor of the views of the dissenting Justice in that case. Of course, the Court actually holds only that this new exemption applies in cases such as the present in which the parties to the bargaining process are affected by the challenged anticompetitive conduct. Ante, at 250. But that welcome limitation on its opinion fails to make the Court's explanation of its result in this case any more persuasive. The Court explains that the nonstatutory labor exemption serves to ensure that "antitrust courts" will not end up substituting their views of labor policy for those of either the 259 Labor Board or the bargaining parties. Ante, at 236-237. The Court concludes, therefore, that almost any concerted action by employers that touches on a mandatory subject of collective bargaining, no matter how obviously offensive to the policies underlying the Nation's antitrust statutes, should be immune from scrutiny so long as a collectivebargaining process is in place. It notes that a contrary conclusion would require "antitrust courts, insulated from the bargaining process, to investigate an employer group's subjective motive," a task that it believes too "amorphous" to be permissible. Ante, at 247. The argument that "antitrust courts" should be kept out of the collective-bargaining process has a venerable lineage. See Duplex Printing Press Our prior precedents subscribing to its basic point, however, do not justify the conclusion that employees have no recourse other than the Labor Board when employers collectively undertake anticompetitive action. In fact, they contradict it. We have previously considered the scope of the nonstatutory labor exemption only in cases involving challenges to anticompetitive agreements between unions and employers brought by other employers not parties to those agreements. Ante, at 243. Even then, we have concluded that the exemption does not always apply. See Mine As explained, the mere fact that an antitrust challenge touches on an issue, such as wages, that is subject to mandatory bargaining does not suffice to trigger the judicially fashioned exemption. Moreover, we concluded that the exemption should not obtain in itself only after we examined the motives of one of the parties to the bargaining process. at The Court's only attempt to square its decision with occurs at the close of its opinion. It concludes that 260 the exemption applies because the employers' action "grew out of, and was directly related to, the lawful operation of the bargaining process," "[i]t involved a matter that the parties were required to negotiate collectively," and that "concerned only the parties to the collective-bargaining relationship." Ante, at 250. As to the first two qualifiers, the same could be said of Indeed, the same was said and rejected in "This is not to say that an agreement resulting from union-employer negotiations is automatically exempt from Sherman Act scrutiny simply because the negotiations involve a compulsory subject of bargaining, regardless of the subject or the form and content of the agreement." 381 U.S., -665. The final qualifier does distinguish but only partially so. To determine whether the exemption applied in we undertook a detailed examination into whether the policies of labor law so strongly supported the agreement struck by the bargaining parties that it should be immune from antitrust scrutiny. We concluded that because the agreement affected employers not parties to the bargaining process, labor law policies could not be understood to require the exemption. Here, however, the Court does not undertake a review of labor law policy to determine whether it would support an exemption for the unilateral imposition of anticompetitive wage terms by employers on a union. The Court appears to conclude instead that the exemption should apply merely because the employers' action was implemented during a lawful negotiating process concerning a mandatory subject of bargaining. Thus, the Court's analysis would seem to constitute both an unprecedented expansion of a heretofore limited exemption, and an unexplained repudiation of the reasoning in a prior, nonconstitutional decision that Congress itself has not seen fit to override. 261 The Court nevertheless contends that the "rationale" of our prior cases supports its approach. Ante, at 243. As support for that contention, it relies heavily on the views espoused in Justice Goldberg's separate opinion in Meat At five critical junctures in its opinion, see ante, at 236, 237-238, 242, 247248, the Court invokes that separate concurrence to explain why, for purposes of applying the nonstatutory labor exemption, labor law policy admits of no distinction between collective employer action taken in response to labor demands and collective employer action of the kind we consider here. It should be remembered that Tea concerned only the question whether an agreement between employers and a union may be exempt, and that even then the Court did not accept the broad antitrust exemption that Justice Goldberg advocated. Instead, Justice White, the author of writing for Chief Justice Warren and Justice Brennan, explained that even in disputes over the lawfulness of agreements about terms that are subject to mandatory bargaining, courts must examine the bargaining process to determine whether antitrust scrutiny should obtain. Tea, -697. "The crucial determinant is not the form of the agreement e. g., prices or wagesbut its relative impact on the product market and the interests of union members. " Moreover, the three dissenters, Justices Douglas, Clark, and Black, concluded that the union was entitled to no immunity at all. It should also be remembered that Justice Goldberg used his separate opinion in Tea to explain his reasons for dissenting from the Court's opinion in He explained that the Court's approach in was unjustifiable precisely because it permitted "antitrust courts" to reexamine the bargaining process. The Court fails to explain its apparent substitution in this case of Justice Goldberg's 262 understanding of the exemption, an understanding previously endorsed by only two other Justices, for the one adopted by the Court in The Court's silence is all the more remarkable in light of the patent factual distinctions between Tea and the present case. It is not at all clear that Justice Goldberg himself understood his expansive rationale to require application of the exemption in circumstances such as those before us here. Indeed, the main theme of his opinion was that the antitrust laws should not be used to circumscribe bargaining over union demands. Tea, -725. Moreover, Justice Goldberg proved himself to be a most unreliable advocate for the sweeping position that the Court attributes to him. Not long after leaving the Court, Justice Goldberg served as counsel for Curt Flood, a professional baseball player who contended that major league baseball's reserve clause violated the antitrust laws. 7 U.S. 258 Although the Flood case primarily concerned whether professional baseball should be exempt from antitrust law altogether, see Federal Baseball Club of Baltimore, ; the labor law dimensions of the case did not go unnoticed. The article that first advanced the expansive view of the nonstatutory labor exemption that the Court appears now to endorse was written shortly after this Court granted certiorari in Flood, see Jacobs & Winter, Antitrust Principles and Collective Bargaining by Athletes: Of Superstars in Peonage, 81 Yale L. J. 1 and the parties to the case addressed the very questions now before us. Aware of both this commentary, and, of course, his own prior opinion in Tea, Justice Goldberg explained in his brief to this Court why baseball's reserve clause should not be protected from antitrust review by the nonstatutory labor exemption. 263 "This Court has held that even a labor organization, the principal intended beneficiary of the so-called labor exemption, may not escape antitrust liability when it acts, not unilaterally and in the sole interest of its own members, but in concert with employers `to prescribe labor standards outside the bargaining unit[.]' And this is so even when the issue is so central to bargaining as wages. Mine Compare Meat See 1 U.S. 302, "The separate opinion on which respondents focus did express the view that `collective bargaining activity on mandatory subjects of bargaining' is exempt from antitrust regulation, without regard to whether the union conduct involved is `unilateral.' Meat But the author of that opinion agreed with the majority that agreements between unions and nonlabor groups on hard-core restraints like `price-fixing and market allocation' were not And there is no support in any of the opinions filed in Meat Cutters for Baseball's essential, if tacit, contention that unilateral, hard-core anticompetitive activity by employers acting alonethe present caseis somehow exempt from antitrust regulation." Reply Brief for Petitioner in O. T. 1971, No. 71-32, pp. 13-14. Moreover, Justice Goldberg explained that the extension of antitrust immunity to unilateral, anticompetitive employer action would be particularly inappropriate because baseball's reserve clause predated collective bargaining. "This case is in fact much clearer than Meat Cutters, or Ramsey, for petitioner does not challenge the fruits of collective bargaining activity. He seeks relief from a schemethe reserve systemwhich 264 Baseball admits has been in existence for nearly a century, and which the trial court expressly found was `created and imposed by the club owners long before the arrival of collective bargaining.' " I would add only that this case is in fact much clearer than Flood, for there the owners sought only to preserve a restraint on competition to which the union had not agreed, while here they seek to create one. Adoption of Justice Goldberg's views would mean, of course, that in some instances "antitrust courts" would have to displace the authority of the Labor Board. The labor laws do not exist, however, to ensure the perpetuation of the Board's authority. That is why we have not previously adopted the Court's position. That is also why in other contexts we have not thought the mere existence of a collectivebargaining agreement sufficient to immunize employers from background laws that are similar to the Sherman Act. See Fort Halifax Packing v. Coyne, ; Metropolitan Life Ins. v. Massachusetts,[6] 265 IV Congress is free to act to exempt the anticompetitive employer conduct that we review today. In the absence of such action, I do not believe it is for us to stretch the limited exemption that we have fashioned to facilitate the express statutory exemption created for labor's benefit so that unions must strike in order to restore a prior practice of individually negotiating salaries. I therefore agree with the position that the District Court adopted below. "Because the developmental squad salary provisions were a new concept and not a change in terms of the expired collective bargaining agreement, the policy behind continuing the nonstatutory labor exemption for the terms of a collective bargaining agreement after expiration (to foster an atmosphere conducive to the negotiation of a new collective bargaining agreement) does not apply. To hold that the nonstatutory labor exemption extends to shield the NFL from antitrust liability for imposing restraints never before agreed to by the union would not only infringe on the union's freedom to contract, H. K. Porter v. (one of fundamental policies of NLRA is freedom of contract), but would also contradict the very purpose of the antitrust exemption by not promoting execution of a collective bargaining agreement with terms mutually 266 acceptable to employer and labor union alike. Labor unions would be unlikely to sign collective bargaining agreements with employers if they believed that they would be forced to accept terms to which they never agreed." Accordingly, I respectfully dissent.	2,103
Justice O'Connor	majority	false	Seling v. Young	2001-01-17	null	https://www.courtlistener.com/opinion/118401/seling-v-young/	https://www.courtlistener.com/api/rest/v3/clusters/118401/	2,001	2000-015	1	8	1	Washington State's Community Protection Act of 1990 authorizes the civil commitment of "sexually violent predators," persons who suffer from a mental abnormality or personality disorder that makes them likely to engage in predatory acts of sexual violence. Wash. Rev. Code § 71.09.010 et seq. (1992). Respondent, Andre Brigham Young, is confined as a sexually violent predator at the Special Commitment Center (Center), for which petitioner is the superintendent. After respondent's challenges to his commitment in state court proved largely unsuccessful, he instituted a habeas action under 28 U.S. C. § 2254, seeking release from confinement. The Washington Supreme Court had already held that the Act is civil, In re Young, 122 Wash. 2d 1, 857 P.2d 989 (1993) (en banc), and this Court held a similar commitment scheme for sexually violent predators in Kansas to be civil on its face, Kansas v. Hendricks, 521 U.S. 346 (1997). The Court of Appeals for the Ninth Circuit nevertheless concluded that respondent could challenge the statute as being punitive "as applied" to him in violation of the 254 Double Jeopardy and Ex Post Facto Clauses, and remanded the case to the District Court for an evidentiary hearing. I A Washington State's Community Protection Act of 1990 (Act) was a response to citizens' concerns about laws and procedures regarding sexually violent offenders. One of the Act's provisions authorizes civil commitment of such offenders. Wash. Rev. Code § 71.09.010 et seq. (1992 and Supp. 2000). The Act defines a sexually violent predator as someone who has been convicted of, or charged with, a crime of sexual violence and who suffers from a mental abnormality or personality disorder that makes the person likely to engage in predatory acts of sexual violence if not confined in a secure facility. § 71.09.020(1) (Supp. 2000). The statute reaches prisoners, juveniles, persons found incompetent to stand trial, persons found not guilty by reason of insanity, and persons at any time convicted of a sexually violent offense who have committed a recent overt act. § 71.09.030. Generally, when it appears that a person who has committed a sexually violent offense is about to be released from confinement, the prosecuting attorney files a petition alleging that that person is a sexually violent predator. Ibid. That filing triggers a process for charging and trying the person as a sexually violent predator, during which he is afforded a panoply of protections including counsel and experts (paid for by the State in cases of indigency), a probable cause hearing, and trial by judge or jury at the individual's option. §§ 71.09.040-71.09.050. At trial, the State bears the burden to prove beyond a reasonable doubt that the person is a sexually violent predator. § 71.09.060(1). Upon the finding that a person is a sexually violent predator, he is committed for control, care, and treatment to the custody of the department of social and health services. Ibid. Once confined, the person has a right to adequate care 255 and individualized treatment. § 71.09.080(2). The person is also entitled to an annual examination of his mental condition. § 71.09.070. If that examination indicates that the individual's condition is so changed that he is not likely to engage in predatory acts of sexual violence, state officials must authorize the person to petition the court for conditional release or discharge. § 71.09.090(1). The person is entitled to a hearing at which the State again bears the burden of proving beyond a reasonable doubt that he is not safe to be at large. Ibid. The person may also independently petition the court for release. § 71.09.090(2). At a show cause hearing, if the court finds probable cause to believe that the person is no longer dangerous, a full hearing will be held at which the State again bears the burden of proof. Ibid. The Act also provides a procedure to petition for conditional release to a less restrictive alternative to confinement. § 71.09.090. Before ordering conditional release, the court must find that the person will be treated by a state certified sexual offender treatment provider, that there is a specific course of treatment, that housing exists that will be sufficiently secure to protect the community, and that the person is willing to comply with the treatment and supervision requirements. § 71.09.092. Conditional release is subject to annual review until the person is unconditionally released. §§ 71.09.096, 71.09.098. B Respondent, Andre Brigham Young, was convicted of six rapes over three decades. App. to Pet. for Cert. 33a. Young was scheduled to be released from prison for his most recent conviction in October 1990. One day prior to his scheduled release, the State filed a petition to commit Young as a sexually violent predator. Id., at 32a. At the commitment hearing, Young's mental health experts testified that there is no mental disorder that makes a person likely to reoffend and that there is no way to predict accurately who will reoffend. The State called an expert 256 who testified, based upon a review of Young's records, that Young suffered from a severe personality disorder not otherwise specified with primarily paranoid and antisocial features, and a severe paraphilia, which would be classified as either paraphilia sexual sadism or paraphilia not otherwise specified (rape). See generally American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 522-523, 530, 532, 634, 645-646, 673 (4th ed. 1994). In the state expert's opinion, severe paraphilia constituted a mental abnormality under the Act. The State's expert concluded that Young's condition, in combination with the personality disorder, the span of time during which Young committed his crimes, his recidivism, his persistent denial, and his lack of empathy or remorse, made it more likely than not that he would commit further sexually violent acts. The victims of Young's rapes also testified. The jury unanimously concluded that Young was a sexually violent predator. Young and another individual appealed their commitments in state court, arguing that the Act violated the Double Jeopardy, Ex Post Facto, Due Process, and Equal Protection Clauses of the Federal Constitution. In major respects, the Washington Supreme Court held that the Act is constitutional. In re Young, 122 Wash. 2d 1, 857 P.2d 989 (1993) (en banc). To the extent the court concluded that the Act violated due process and equal protection principles, those rulings are reflected in subsequent amendments to the Act. See Part IA, supra. The Washington court reasoned that the claimants' double jeopardy and ex post facto claims hinged on whether the Act is civil or criminal in nature. Following this Court's precedents, the court examined the language of the Act, the legislative history, and the purpose and effect of the statutory scheme. The court found that the legislature clearly intended to create a civil scheme both in the statutory language and legislative history. The court then turned to 257 examine whether the actual impact of the Act is civil or criminal. The Act, the court concluded, is concerned with treating committed persons for a current mental abnormality, and protecting society from the sexually violent acts associated with that abnormality, rather than being concerned with criminal culpability. The court distinguished the goals of incapacitation and treatment from the goal of punishment. The court found that the Washington Act is designed to further legitimate goals of civil confinement and that the claimants had failed to provide proof to the contrary. 122 Wash. 2d, at 18-25, 857 P.2d, at 996-1000. The Act spawned several other challenges in state and federal court, two of which bear mention. Richard Turay, committed as a sexually violent predator, filed suit in Federal District Court against Center officials under Rev. Stat. § 1979, 42 U.S. C. § 1983, alleging unconstitutional conditions of confinement and inadequate treatment at the Center. In 1994, a jury concluded that the Center had failed to provide constitutionally adequate mental health treatment. App. 64-68. The court ordered officials at the Center to bring the institution up to constitutional standards, appointing a Special Master to monitor progress at the Center. The Center currently operates under an injunction. Turay v. Seling, 108 F. Supp. 2d 1148 (WD Wash. 2000). See also Brief for Petitioner 8-9. Turay also appealed his commitment as a sexually violent predator in state court, claiming, among other things, that the conditions of confinement at the Center rendered the Washington Act punitive "as applied" to him in violation of the Double Jeopardy Clause. The Washington Supreme Court ruled that Turay's commitment was valid. In re Turay, 139 Wash. 2d 379, 986 P.2d 790 (1999) (en banc). The court explained that in Young, it had concluded that the Act is civil. 139 Wash. 2d, at 415, 986 P.2d, at 809. The court also noted that this Court had recently held Kansas' Sexually Violent Predator Act, nearly identical to Washington's Act, 258 to be civil on its face. Ibid. The Washington Supreme Court rejected Turay's theory of double jeopardy, reasoning that the double jeopardy claim must be resolved by asking whether the Act itself is civil. Id., at 416-417, 986 P.2d, at 810 (citing Hudson v. United States, 522 U.S. 93 (1997)). The court concluded that Turay's proper remedy for constitutional violations in conditions of confinement at the Center was his § 1983 action for damages and injunctive relief. 139 Wash. 2d, at 420, 986 P.2d, at 812. C That brings us to the action before this Court. In 1994, after unsuccessful challenges to his confinement in state court, Young filed ahabeas action under 28 U.S. C. § 2254 against the superintendent of the Center. Young contended that the Act was unconstitutional and that his confinement was illegal. He sought immediate release. The District Court granted the writ, concluding that the Act violated substantive due process, that the Act was criminal rather than civil, and that it violated the double jeopardy and ex post facto guarantees of the Constitution. Young v. Weston, 898 F. Supp. 744 (WD Wash. 1995). The superintendent appealed. While the appeal was pending, this Court decided Kansas v. Hendricks, 521 U.S. 346 (1997), which held that Kansas' Sexually Violent Predator Act, on its face, met substantive due process requirements, was nonpunitive, and thus did not violate the Double Jeopardy and Ex Post Facto Clauses. The Ninth Circuit Court of Appeals remanded Young's case to the District Court for reconsideration in light of Hendricks. 122 F.3d 38 (1997). On remand, the District Court denied Young's petition. Young appealed and the Ninth Circuit reversed and remanded in part and affirmed in part. 192 F.3d 870 (1999). The Ninth Circuit affirmed the District Court's ruling that Young's confinement did not violate the substantive due process requirement that the State prove mental illness 259 and dangerousness to justify confinement. Id., at 876. The Court of Appeals also left undisturbed the District Court's conclusion that the Act meets procedural due process and equal protection guarantees, and the District Court's rejection of Young's challenges to his commitment proceedings. Id., at 876-877. Young did not seek a petition for a writ of certiorari to the Ninth Circuit for its decision affirming the District Court in these respects, and accordingly, those issues are not before this Court. The Ninth Circuit reversed the District Court's determination that because the Washington Act is civil, Young's double jeopardy and ex post facto claims must fail. The "linchpin" of Young's claims, the court reasoned, was whether the Act was punitive "as applied" to Young. Id., at 873. The court did not read this Court's decision in Hendricks to preclude the possibility that the Act could be punitive as applied. The court reasoned that actual conditions of confinement could divest a facially valid statute of its civil label upon a showing by the clearest proof that the statutory scheme is punitive in effect. 192 F.3d, at 874. The Court of Appeals reviewed Young's claims that conditions of confinement at the Center were punitive and did not comport with due process. Id., at 875. Young alleged that for seven years, he had been subject to conditions more restrictive than those placed on true civil commitment detainees, and even state prisoners. The Center, located wholly within the perimeter of a larger Department of Corrections (DOC) facility, relied on the DOC for a host of essential services, including library services, medical care, food, and security. More recently, Young claimed, the role of the DOC had increased to include daily security "walk-throughs." Young contended that the conditions and restrictions at the Center were not reasonably related to a legitimate nonpunitive goal, as residents were abused, confined to their rooms, subjected to random searches of their rooms and units, and placed under excessive security. 260 Young also contended that conditions at the Center were incompatible with the Act's treatment purpose. The Center had a policy of videotaping therapy sessions and withholding privileges for refusal to submit to treatment. The Center residents were housed in units that, according to the Special Master in the Turay litigation, were clearly inappropriate for persons in a mental health treatment program. The Center still lacked certified sex offender treatment providers. Finally, there was no possibility of release. A courtappointed resident advocate and psychologist concluded in his final report that because the Center had not fundamentally changed over so many years, he had come to suspect that the Center was designed and managed to punish and confine individuals for life without any hope of release to a less restrictive setting. 192 F.3d, at 875. See also Amended Petition for Writ of Habeas Corpus, Supplemental Brief on Remand, and Motion to Alter Judgment 4-5, 8-9, 11-12, 15, 20, 24-26, in No. C94-480C (WD Wash.), Record, Doc. Nos. 57, 155, and 167. The Ninth Circuit concluded that "[b]y alleging that [the Washington Act] is punitive as applied, Young alleged facts which, if proved, would entitle him to relief." 192 F.3d, at 875. The court remanded the case to the District Court for a hearing to determine whether the conditions at the Center rendered the Act punitive as applied to Young. Id., at 876. This Court granted the petition for a writ of certiorari, 529 U.S. 1017 (2000), to resolve the conflict between the Ninth Circuit Court of Appeals and the Washington Supreme Court. Compare 192 F.3d 870 (1999), with In re Turay, 139 Wash. 2d 379, 986 P.2d 790 (1999). II As the Washington Supreme Court held and the Ninth Circuit acknowledged, we proceed on the understanding that the Washington Act is civil in nature. The Washington Act is strikingly similar to a commitment scheme we reviewed 261 four Terms ago in Kansas v. Hendricks, 521 U.S. 346 (1997). In fact, Kansas patterned its Act after Washington's. See In re Hendricks, 259 Kan. 246, 249, 912 P.2d 129, 131 (1996). In Hendricks, we explained that the question whether an Act is civil or punitive in nature is initially one of statutory construction. 521 U.S., at 361 (citing Allen v. Illinois, 478 U.S. 364, 368 (1986)). A court must ascertain whether the legislature intended the statute to establish civil proceedings. A court will reject the legislature's manifest intent only where a party challenging the Act provides the clearest proof that the statutory scheme is so punitive in either purpose or effect as to negate the State's intention. 521 U.S., at 361 (citing United States v. Ward, 448 U.S. 242, 248-249 (1980)). We concluded that the confined individual in that case had failed to satisfy his burden with respect to the Kansas Act. We noted several factors: The Act did not implicate retribution or deterrence; prior criminal convictions were used as evidence in the commitment proceedings, but were not a prerequisite to confinement; the Act required no finding of scienter to commit a person; the Act was not intended to function as a deterrent; and although the procedural safeguards were similar to those in the criminal context, they did not alter the character of the scheme. 521 U.S., at 361-365. We also examined the conditions of confinement provided by the Act. Id., at 363-364. The Court was aware that sexually violent predators in Kansas were to be held in a segregated unit within the prison system. Id., at 368. We explained that the Act called for confinement in a secure facility because the persons confined were dangerous to the community. Id., at 363. We noted, however, that conditions within the unit were essentially the same as conditions for other involuntarily committed persons in mental hospitals. Ibid. Moreover, confinement under the Act was not necessarily indefinite in duration. Id., at 364. Finally, we observed that in addition to protecting the public, the Act also provided treatment for sexually violent predators. Id., 262 at 365-368. We acknowledged that not all mental conditions were treatable. For those individuals with untreatable conditions, however, we explained that there was no federal constitutional bar to their civil confinement, because the State had an interest in protecting the public from dangerous individuals with treatable as well as untreatable conditions. Id., at 366. Our conclusion that the Kansas Act was "nonpunitive thus remove[d] an essential prerequisite for both Hendricks' double jeopardy and ex post facto claims." Id., at 369. Since deciding Hendricks, this Court has reaffirmed the principle that determining the civil or punitive nature of an Act must begin with reference to its text and legislative history. Hudson v.United States, 522 U.S. 93 (1997). In Hudson, which involved a double jeopardy challenge to monetary penalties and occupational debarment, this Court expressly disapproved of evaluating the civil nature of an Act by reference to the effect that Act has on a single individual. Instead, courts must evaluate the question by reference to a variety of factors "`considered in relation to the statute on its face' "; the clearest proof is required to override legislative intent and conclude that an Act denominated civil is punitive in purpose or effect. Id., at 100 (quoting Kennedy v. Mendoza-Martinez, 372 U.S. 144, 169 (1963)). With this in mind, we turn to the Court of Appeals' determination that respondent could raise an "as-applied" challenge to the Act on double jeopardy and ex post facto grounds and seek release from confinement. Respondent essentially claims that the conditions of his confinement at the Center are too restrictive, that the conditions are incompatible with treatment, and that the system is designed to result in indefinite confinement. Respondent's claims are in many respects like the claims presented to the Court in Hendricks, where we concluded that the conditions of confinement were largely explained by the State's goal to incapacitate, not to punish. 521 U.S., at 362-368. Nevertheless, 263 we do not deny that some of respondent's allegations are serious. Nor do we express any view as to how his allegations would bear on a court determining in the first instance whether Washington's confinement scheme is civil. Here, we evaluate respondent's allegations as presented in a double jeopardy and ex post facto challenge under the assumption that the Act is civil. We hold that respondent cannot obtain release through an "as-applied" challenge to the Washington Act on double jeopardy and ex post facto grounds. We agree with petitioner that an "as-applied" analysis would prove unworkable. Such an analysis would never conclusively resolve whether a particular scheme is punitive and would thereby prevent a final determination of the scheme's validity under the Double Jeopardy and Ex Post Facto Clauses. Brief for Petitioner 30; Reply Brief for Petitioner 9. Unlike a fine, confinement is not a fixed event. As petitioner notes, it extends over time under conditions that are subject to change. The particular features of confinement may affect how a confinement scheme is evaluated to determine whether it is civil rather than punitive, but it remains no less true that the query must be answered definitively. The civil nature of a confinement scheme cannot be altered based merely on vagaries in the implementation of the authorizing statute. Respondent contends that the Ninth Circuit's "as-applied" analysis comports with this Court's precedents. He points out that this Court has considered conditions of confinement in evaluating the validity of confinement schemes in the past. Brief for Respondent 11-16, 29 (citing Hendricks, supra, at 363; Reno v. Flores, 507 U.S. 292, 301-302 (1993); United States v. Salerno, 481 U.S. 739, 747-748 (1987); Allen v. Illinois, supra, at 373-374; Schall v. Martin, 467 U.S. 253, 269 273 (1984)). All of those cases, however, presented the question whether the Act at issue was punitive. Permitting respondent's as-applied challenge would invite an end run around the Washington Supreme Court's decision that the 264 Act is civil in circumstances where a direct attack on that decision is not before this Court. Justice Thomas, concurring in the judgment, takes issue with our view that the question before the Court concerns an as-applied challenge to a civil Act. He first contends that respondent's challenge is not a true "as-applied" challenge because respondent does not claim that the statute "`by its own terms' is unconstitutional as applied . . . but rather that the statute is not being applied according to its terms at all." Post, at 271. We respectfully disagree. The Act requires "adequate care and individualized treatment," Wash. Rev. Code § 71.09.080(2) (Supp. 2000), but the Act is silent with respect to the confinement conditions required at the Center, and that is the source of many of respondent's complaints, see supra, at 259-260. Justice Thomas next contends that we incorrectly assume that the Act is civil, instead of viewing the Act as "`otherwise . . . civil,' or civil `on its face.' " Post, at 270 (emphasis added by Thomas, J.). However the Washington Act is described, our analysis in this case turns on the prior finding by the Washington Supreme Court that the Act is civil, and this Court's decision in Hendricks that a nearly identical Act was civil. Petitioner could not have claimed that the Washington Act is "otherwise" or "facially" civil without relying on those prior decisions. In dissent, Justice Stevens argues that we "incorrectly assum[e]" that the Act is "necessarily civil," post, at 275, but the case has reached this Court under that very assumption. The Court of Appeals recognized that the Act is civil, and treated respondent's claim as an individual, "as-applied" challenge to the Act. The Court of Appeals then remanded the case to the District Court for an evidentiary hearing to determine respondent's conditions of confinement. Contrary to the dissent's characterization of the case, the Court of Appeals did not purport to undermine the validity of the Washington Act as a civil confinement scheme. The court did not conclude that respondent's allegations, if substantiated, 265 would be sufficient to refute the Washington Supreme Court's conclusion that the Act is civil, and to require the release of all those confined under its authority. The Ninth Circuit addressed only respondent's individual case, and we do not decide claims that are not presented by the decision below. Matsushita Elec. Industrial Co. v. Epstein, 516 U.S. 367, 379 (1996). We reject the Ninth Circuit's "asapplied" analysis for double jeopardy and ex post facto claims as fundamentally flawed. III Our decision today does not mean that respondent and others committed as sexually violent predators have no remedy for the alleged conditions and treatment regime at the Center. The text of the Washington Act states that those confined under its authority have the right to adequate care and individualized treatment. Wash. Rev. Code § 71.09.080(2) (Supp. 2000); Brief for Petitioner 14. As petitioner acknowledges, if the Center fails to fulfill its statutory duty, those confined may have a state law cause of action. Tr. of Oral Arg. 6, 10-11, 52. It is for the Washington courts to determine whether the Center is operating in accordance with state law and provide a remedy. State courts, in addition to federal courts, remain competent to adjudicate and remedy challenges to civil confinement schemes arising under the Federal Constitution. As noted above, the Washington Supreme Court has already held that the Washington Act is civil in nature, designed to incapacitate and to treat. In re Young, 122 Wash. 2d, at 18-25, 857 P.2d, at 996-1000. Accordingly, due process requires that the conditions and duration of confinement under the Act bear some reasonable relation to the purpose for which persons are committed. Foucha v. Louisiana, 504 U.S. 71, 79 (1992); Youngberg v. Romeo, 457 U.S. 307, 324 (1982); Jackson v. Indiana, 406 U.S. 715, 738 (1972). Finally, we note that a § 1983 action against the Center is pending in the Western District of Washington. See supra, 266 at 257. The Center operates under an injunction that requires it to adopt and implement a plan for training and hiring competent sex offender therapists; to improve relations between residents and treatment providers; to implement a treatment program for residents containing elements required by prevailing professional standards; to develop individual treatment programs; and to provide a psychologist or psychiatrist expert in the diagnosis and treatment of sex offenders to supervise the staff. App. 67. A Special Master has assisted in bringing the Center into compliance with the injunction. In its most recent published opinion on the matter, the District Court noted some progress at the Center in meeting the requirements of the injunction. Turay v. Seling, 108 F. Supp. 2d, at 1154-1155. This case gives us no occasion to consider how the civil nature of a confinement scheme relates to other constitutional challenges, such as due process, or to consider the extent to which a court may look to actual conditions of confinement and implementation of the statute to determine in the first instance whether a confinement scheme is civil in nature. Justice Scalia, concurring, contends that conditions of confinement are irrelevant to determining whether an Act is civil unless state courts have interpreted the Act as permitting those conditions. By contrast, Justice Stevens would consider conditions of confinement at any time in order to gain "full knowledge of the effects of the statute." Post, at 277. Whether a confinement scheme is punitive has been the threshold question for some constitutional challenges. See, e. g., Kansas v. Hendricks, 521 U.S. 346 (1997) (double jeopardy and ex post facto ); United States v. Salerno, 481 U.S. 739 (1987) (due process); Allen v. Illinois, 478 U.S. 364 (1986) (Fifth Amendment privilege against self-incrimination). Whatever these cases may suggest about the relevance of conditions of confinement, they do not endorse the approach of the dissent, which would render the inquiry into the "effects 267 of the statute," post, at 277, completely open ended. In one case, the Court refused to consider alleged confinement conditions because the parties had entered into a consent decree to improve conditions. Flores, 507 U. S., at 301. The Court presumed that conditions were in compliance with the requirements of the consent decree. Ibid. In another case, the Court found that anecdotal case histories and a statistical study were insufficient to render a regulatory confinement scheme punitive. Martin, 467 U. S., at 272. In such cases, we have decided whether a confinement scheme is punitive notwithstanding the inherent difficulty in ascertaining current conditions and predicting future events. We have not squarely addressed the relevance of conditions of confinement to a first instance determination, and that question need not be resolved here. An Act, found to be civil, cannot be deemed punitive "as applied" to a single individual in violation of the Double Jeopardy and Ex Post Facto Clauses and provide cause for release. The judgment of the United States Court of Appeals for the Ninth Circuit is therefore reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.	Washington State's Community Protection ct of 1990 authorizes the civil commitment of "sexually violent predators," persons who suffer from a mental abnormality or personality disorder that makes them likely to engage in predatory acts of sexual violence. et seq. Respondent, ndre Brigham is confined as a sexually violent predator at the Special Commitment Center (Center), for which petitioner is the superintendent. fter respondent's challenges to his commitment in state court proved largely unsuccessful, he instituted a habeas action under 28 U.S. C. 2254, seeking release from confinement. The Washington Supreme Court had already held that the ct is civil, In re and this Court held a similar commitment scheme for sexually violent predators in Kansas to be civil on its face, The Court of ppeals for the Ninth Circuit nevertheless concluded that respondent could challenge the statute as being punitive "as applied" to him in violation of the 254 Double Jeopardy and Ex Post Facto Clauses, and remanded the case to the District Court for an evidentiary hearing. I Washington State's Community Protection ct of 1990 (ct) was a response to citizens' concerns about laws and procedures regarding sexually violent offenders. One of the ct's provisions authorizes civil commitment of such offenders. et seq. The ct defines a sexually violent predator as someone who has been convicted of, or charged with, a crime of sexual violence and who suffers from a mental abnormality or personality disorder that makes the person likely to engage in predatory acts of sexual violence if not confined in a secure facility. 71.09.020(1) The statute reaches prisoners, juveniles, persons found incompetent to stand trial, persons found not guilty by reason of insanity, and persons at any time convicted of a sexually violent offense who have committed a recent overt act. 71.09.030. Generally, when it appears that a person who has committed a sexually violent offense is about to be released from confinement, the prosecuting attorney files a petition alleging that that person is a sexually violent predator. That filing triggers a process for charging and trying the person as a sexually violent predator, during which he is afforded a panoply of protections including counsel and experts (paid for by the State in cases of indigency), a probable cause hearing, and trial by judge or jury at the individual's option. 71.09.040-71.09.050. t trial, the State bears the burden to prove beyond a reasonable doubt that the person is a sexually violent predator. 71.09.060(1). Upon the finding that a person is a sexually violent predator, he is committed for control, care, and treatment to the custody of the department of social and health services. Once confined, the person has a right to adequate care 255 and individualized treatment. 71.09.080(2). The person is also entitled to an annual examination of his mental condition. 71.09.070. If that examination indicates that the individual's condition is so changed that he is not likely to engage in predatory acts of sexual violence, state officials must authorize the person to petition the court for conditional release or discharge. 71.09.090(1). The person is entitled to a hearing at which the State again bears the burden of proving beyond a reasonable doubt that he is not safe to be at large. The person may also independently petition the court for release. 71.09.090(2). t a show cause hearing, if the court finds probable cause to believe that the person is no longer dangerous, a full hearing will be held at which the State again bears the burden of proof. The ct also provides a procedure to petition for conditional release to a less restrictive alternative to confinement. 71.09.090. Before ordering conditional release, the court must find that the person will be treated by a state certified sexual offender treatment provider, that there is a specific course of treatment, that housing exists that will be sufficiently secure to protect the community, and that the person is willing to comply with the treatment and supervision requirements. 71.09.092. Conditional release is subject to annual review until the person is unconditionally released. 71.09.096, 71.09.098. B Respondent, ndre Brigham was convicted of six rapes over three decades. pp. to Pet. for Cert. 33a. was scheduled to be released from prison for his most recent conviction in October 1990. One day prior to his scheduled release, the State filed a petition to commit as a sexually violent predator. at 32a. t the commitment hearing, 's mental health experts testified that there is no mental disorder that makes a person likely to reoffend and that there is no way to predict accurately who will reoffend. The State called an expert 256 who testified, based upon a review of 's records, that suffered from a severe personality disorder not otherwise specified with primarily paranoid and antisocial features, and a severe paraphilia, which would be classified as either paraphilia sexual sadism or paraphilia not otherwise specified (rape). See generally merican Psychiatric ssociation, Diagnostic and Statistical Manual of Mental Disorders 522-523, 530, 532, 634, 645-646, 673 (4th ed. 1994). In the state expert's opinion, severe paraphilia constituted a mental abnormality under the ct. The State's expert concluded that 's condition, in combination with the personality disorder, the span of time during which committed his crimes, his recidivism, his persistent denial, and his lack of empathy or remorse, made it more likely than not that he would commit further sexually violent acts. The victims of 's rapes also testified. The jury unanimously concluded that was a sexually violent predator. and another individual appealed their commitments in state court, arguing that the ct violated the Double Jeopardy, Ex Post Facto, Due Process, and Equal Protection Clauses of the Federal Constitution. In major respects, the Washington Supreme Court held that the ct is constitutional. In re To the extent the court concluded that the ct violated due process and equal protection principles, those rulings are reflected in subsequent amendments to the ct. See Part I, The Washington court reasoned that the claimants' double jeopardy and ex post facto claims hinged on whether the ct is civil or criminal in nature. Following this Court's precedents, the court examined the language of the ct, the legislative history, and the purpose and effect of the statutory scheme. The court found that the legislature clearly intended to create a civil scheme both in the statutory language and legislative history. The court then turned to 257 examine whether the actual impact of the ct is civil or criminal. The ct, the court concluded, is concerned with treating committed persons for a current mental abnormality, and protecting society from the sexually violent acts associated with that abnormality, rather than being concerned with criminal culpability. The court distinguished the goals of incapacitation and treatment from the goal of punishment. The court found that the Washington ct is designed to further legitimate goals of civil confinement and that the claimants had failed to provide proof to the contrary. -1000. The ct spawned several other challenges in state and federal court, two of which bear mention. Richard Turay, committed as a sexually violent predator, filed suit in Federal District Court against Center officials under Rev. Stat. 19, 42 U.S. C. 1983, alleging unconstitutional conditions of confinement and inadequate treatment at the Center. In 1994, a jury concluded that the Center had failed to provide constitutionally adequate mental health treatment. pp. 64-68. The court ordered officials at the Center to bring the institution up to constitutional standards, appointing a Special Master to monitor progress at the Center. The Center currently operates under an injunction. See also Brief for Petitioner 8-9. Turay also appealed his commitment as a sexually violent predator in state court, claiming, among other things, that the conditions of confinement at the Center rendered the Washington ct punitive "as applied" to him in violation of the Double Jeopardy Clause. The Washington Supreme Court ruled that Turay's commitment was valid. In re Turay, The court explained that in it had concluded that the ct is The court also noted that this Court had recently held Kansas' Sexually Violent Predator ct, nearly identical to Washington's ct, 258 to be civil on its face. The Washington Supreme Court rejected Turay's theory of double jeopardy, reasoning that the double jeopardy claim must be resolved by asking whether the ct itself is ). The court concluded that Turay's proper remedy for constitutional violations in conditions of confinement at the Center was his 1983 action for damages and injunctive C That brings us to the action before this Court. In 1994, after unsuccessful challenges to his confinement in state court, filed ahabeas action under 28 U.S. C. 2254 against the superintendent of the Center. contended that the ct was unconstitutional and that his confinement was illegal. He sought immediate release. The District Court granted the writ, concluding that the ct violated substantive due process, that the ct was criminal rather than civil, and that it violated the double jeopardy and ex post facto guarantees of the Constitution. The superintendent appealed. While the appeal was pending, this Court decided which held that Kansas' Sexually Violent Predator ct, on its face, met substantive due process requirements, was nonpunitive, and thus did not violate the Double Jeopardy and Ex Post Facto Clauses. The Ninth Circuit Court of ppeals remanded 's case to the District Court for reconsideration in light of On remand, the District Court denied 's petition. appealed and the Ninth Circuit reversed and remanded in part and affirmed in part. The Ninth Circuit affirmed the District Court's ruling that 's confinement did not violate the substantive due process requirement that the State prove mental illness 259 and dangerousness to justify confinement. The Court of ppeals also left undisturbed the District Court's conclusion that the ct meets procedural due process and equal protection guarantees, and the District Court's rejection of 's challenges to his commitment proceedings. -877. did not seek a petition for a writ of certiorari to the Ninth Circuit for its decision affirming the District Court in these respects, and accordingly, those issues are not before this Court. The Ninth Circuit reversed the District Court's determination that because the Washington ct is civil, 's double jeopardy and ex post facto claims must fail. The "linchpin" of 's claims, the court reasoned, was whether the ct was punitive "as applied" to The court did not read this Court's decision in to preclude the possibility that the ct could be punitive as applied. The court reasoned that actual conditions of confinement could divest a facially valid statute of its civil label upon a showing by the clearest proof that the statutory scheme is punitive in effect. The Court of ppeals reviewed 's claims that conditions of confinement at the Center were punitive and did not comport with due process. alleged that for seven years, he had been subject to conditions more restrictive than those placed on true civil commitment detainees, and even state prisoners. The Center, located wholly within the perimeter of a larger Department of Corrections (DOC) facility, relied on the DOC for a host of essential services, including library services, medical care, food, and security. More recently, claimed, the role of the DOC had increased to include daily security "walk-throughs." contended that the conditions and restrictions at the Center were not reasonably related to a legitimate nonpunitive goal, as residents were abused, confined to their rooms, subjected to random searches of their rooms and units, and placed under excessive security. 260 also contended that conditions at the Center were incompatible with the ct's treatment purpose. The Center had a policy of videotaping therapy sessions and withholding privileges for refusal to submit to treatment. The Center residents were housed in units that, according to the Special Master in the Turay litigation, were clearly inappropriate for persons in a mental health treatment program. The Center still lacked certified sex offender treatment providers. Finally, there was no possibility of release. courtappointed resident advocate and psychologist concluded in his final report that because the Center had not fundamentally changed over so many years, he had come to suspect that the Center was designed and managed to punish and confine individuals for life without any hope of release to a less restrictive setting. 192 F.3d, See also mended Petition for Writ of Habeas Corpus, Supplemental Brief on Remand, and Motion to lter Judgment 4-5, 8-9, 11-12, 15, 20, 24-26, in No. C94-480C (WD Wash.), Record, Doc. Nos. 57, 155, and 167. The Ninth Circuit concluded that "[b]y alleging that [the Washington ct] is punitive as applied, alleged facts which, if proved, would entitle him to " 192 F.3d, The court remanded the case to the District Court for a hearing to determine whether the conditions at the Center rendered the ct punitive as applied to This Court granted the petition for a writ of certiorari, to resolve the conflict between the Ninth Circuit Court of ppeals and the Washington Supreme Court. Compare with In re Turay, II s the Washington Supreme Court held and the Ninth Circuit acknowledged, we proceed on the understanding that the Washington ct is civil in nature. The Washington ct is strikingly similar to a commitment scheme we reviewed 261 four Terms ago in In fact, Kansas patterned its ct after Washington's. See In re In we explained that the question whether an ct is civil or punitive in nature is initially one of statutory ). court must ascertain whether the legislature intended the statute to establish civil proceedings. court will reject the legislature's manifest intent only where a party challenging the ct provides the clearest proof that the statutory scheme is so punitive in either purpose or effect as to negate the State's intention. ). We concluded that the confined individual in that case had failed to satisfy his burden with respect to the Kansas ct. We noted several factors: The ct did not implicate retribution or deterrence; prior criminal convictions were used as evidence in the commitment proceedings, but were not a prerequisite to confinement; the ct required no finding of scienter to commit a person; the ct was not intended to function as a deterrent; and although the procedural safeguards were similar to those in the criminal context, they did not alter the character of the scheme. -365. We also examined the conditions of confinement provided by the ct. The Court was aware that sexually violent predators in Kansas were to be held in a segregated unit within the prison system. at We explained that the ct called for confinement in a secure facility because the persons confined were dangerous to the community. We noted, however, that conditions within the unit were essentially the same as conditions for other involuntarily committed persons in mental hospitals. Moreover, confinement under the ct was not necessarily indefinite in duration. Finally, we observed that in addition to protecting the public, the ct also provided treatment for sexually violent predators. 262 at 365-. We acknowledged that not all mental conditions were treatable. For those individuals with untreatable conditions, however, we explained that there was no federal constitutional bar to their civil confinement, because the State had an interest in protecting the public from dangerous individuals with treatable as well as untreatable conditions. Our conclusion that the Kansas ct was "nonpunitive thus remove[d] an essential prerequisite for both ' double jeopardy and ex post facto claims." Since deciding this Court has reaffirmed the principle that determining the civil or punitive nature of an ct must begin with reference to its text and legislative history. Hudson v.United States, In Hudson, which involved a double jeopardy challenge to monetary penalties and occupational debarment, this Court expressly disapproved of evaluating the civil nature of an ct by reference to the effect that ct has on a single individual. Instead, courts must evaluate the question by reference to a variety of factors "`considered in relation to the statute on its face' "; the clearest proof is required to override legislative intent and conclude that an ct denominated civil is punitive in purpose or effect. ). With this in mind, we turn to the Court of ppeals' determination that respondent could raise an "as-applied" challenge to the ct on double jeopardy and ex post facto grounds and seek release from confinement. Respondent essentially claims that the conditions of his confinement at the Center are too restrictive, that the conditions are incompatible with treatment, and that the system is designed to result in indefinite confinement. Respondent's claims are in many respects like the claims presented to the Court in where we concluded that the conditions of confinement were largely explained by the State's goal to incapacitate, not to punish. -. Nevertheless, 263 we do not deny that some of respondent's allegations are serious. Nor do we express any view as to how his allegations would bear on a court determining in the first instance whether Washington's confinement scheme is Here, we evaluate respondent's allegations as presented in a double jeopardy and ex post facto challenge under the assumption that the ct is We hold that respondent cannot obtain release through an "as-applied" challenge to the Washington ct on double jeopardy and ex post facto grounds. We agree with petitioner that an "as-applied" analysis would prove unworkable. Such an analysis would never conclusively resolve whether a particular scheme is punitive and would thereby prevent a final determination of the scheme's validity under the Double Jeopardy and Ex Post Facto Clauses. Brief for Petitioner 30; Reply Brief for Petitioner 9. Unlike a fine, confinement is not a fixed event. s petitioner notes, it extends over time under conditions that are subject to change. The particular features of confinement may affect how a confinement scheme is evaluated to determine whether it is civil rather than punitive, but it remains no less true that the query must be answered definitively. The civil nature of a confinement scheme cannot be altered based merely on vagaries in the implementation of the authorizing statute. Respondent contends that the Ninth Circuit's "as-applied" analysis comports with this Court's precedents. He points out that this Court has considered conditions of confinement in evaluating the validity of confinement schemes in the past. Brief for Respondent 11-16, 29 ; United ; llen v. ; ). ll of those cases, however, presented the question whether the ct at issue was punitive. Permitting respondent's as-applied challenge would invite an end run around the Washington Supreme Court's decision that the 264 ct is civil in circumstances where a direct attack on that decision is not before this Court. Justice Thomas, concurring in the judgment, takes issue with our view that the question before the Court concerns an as-applied challenge to a civil ct. He first contends that respondent's challenge is not a true "as-applied" challenge because respondent does not claim that the statute "`by its own terms' is unconstitutional as applied but rather that the statute is not being applied according to its terms at all." Post, at 271. We respectfully disagree. The ct requires "adequate care and individualized treatment," Wash. Rev. Code 71.09.080(2) but the ct is silent with respect to the confinement conditions required at the Center, and that is the source of many of respondent's complaints, see Justice Thomas next contends that we incorrectly assume that the ct is civil, instead of viewing the ct as "`otherwise civil,' or civil `on its face.' " Post, at 270 (emphasis added by Thomas, J.). However the Washington ct is described, our analysis in this case turns on the prior finding by the Washington Supreme Court that the ct is civil, and this Court's decision in that a nearly identical ct was Petitioner could not have claimed that the Washington ct is "otherwise" or "facially" civil without relying on those prior decisions. In dissent, Justice Stevens argues that we "incorrectly assum[e]" that the ct is "necessarily civil," post, at 275, but the case has reached this Court under that very assumption. The Court of ppeals recognized that the ct is civil, and treated respondent's claim as an individual, "as-applied" challenge to the ct. The Court of ppeals then remanded the case to the District Court for an evidentiary hearing to determine respondent's conditions of confinement. Contrary to the dissent's characterization of the case, the Court of ppeals did not purport to undermine the validity of the Washington ct as a civil confinement scheme. The court did not conclude that respondent's allegations, if substantiated, 265 would be sufficient to refute the Washington Supreme Court's conclusion that the ct is civil, and to require the release of all those confined under its authority. The Ninth Circuit addressed only respondent's individual case, and we do not decide claims that are not presented by the decision below. Matsushita Elec. Industrial We reject the Ninth Circuit's "asapplied" analysis for double jeopardy and ex post facto claims as fundamentally flawed. III Our decision today does not mean that respondent and others committed as sexually violent predators have no remedy for the alleged conditions and treatment regime at the Center. The text of the Washington ct states that those confined under its authority have the right to adequate care and individualized treatment. Wash. Rev. Code 71.09.080(2) ; Brief for Petitioner 14. s petitioner acknowledges, if the Center fails to fulfill its statutory duty, those confined may have a state law cause of action. Tr. of Oral rg. 6, 10-11, 52. It is for the Washington courts to determine whether the Center is operating in accordance with state law and provide a remedy. State courts, in addition to federal courts, remain competent to adjudicate and remedy challenges to civil confinement schemes arising under the Federal Constitution. s noted above, the Washington Supreme Court has already held that the Washington ct is civil in nature, designed to incapacitate and to treat. In re -1000. ccordingly, due process requires that the conditions and duration of confinement under the ct bear some reasonable relation to the purpose for which persons are committed. ; berg v. Romeo, ; Finally, we note that a 1983 action against the Center is pending in the Western District of Washington. See 266 at 257. The Center operates under an injunction that requires it to adopt and implement a plan for training and hiring competent sex offender therapists; to improve relations between residents and treatment providers; to implement a treatment program for residents containing elements required by prevailing professional standards; to develop individual treatment programs; and to provide a psychologist or psychiatrist expert in the diagnosis and treatment of sex offenders to supervise the staff. pp. 67. Special Master has assisted in bringing the Center into compliance with the injunction. In its most recent published opinion on the matter, the District Court noted some progress at the Center in meeting the requirements of the injunction. -1155. This case gives us no occasion to consider how the civil nature of a confinement scheme relates to other constitutional challenges, such as due process, or to consider the extent to which a court may look to actual conditions of confinement and implementation of the statute to determine in the first instance whether a confinement scheme is civil in nature. Justice Scalia, concurring, contends that conditions of confinement are irrelevant to determining whether an ct is civil unless state courts have interpreted the ct as permitting those conditions. By contrast, Justice Stevens would consider conditions of confinement at any time in order to gain "full knowledge of the effects of the statute." Post, at 277. Whether a confinement scheme is punitive has been the threshold question for some constitutional challenges. See, e. g., ; United ; llen v. (Fifth mendment privilege against self-incrimination). Whatever these cases may suggest about the relevance of conditions of confinement, they do not endorse the approach of the dissent, which would render the inquiry into the "effects 267 of the statute," post, at 277, completely open ended. In one case, the Court refused to consider alleged confinement conditions because the parties had entered into a consent decree to improve conditions. Flores, The Court presumed that conditions were in compliance with the requirements of the consent decree. In another case, the Court found that anecdotal case histories and a statistical study were insufficient to render a regulatory confinement scheme punitive. In such cases, we have decided whether a confinement scheme is punitive notwithstanding the inherent difficulty in ascertaining current conditions and predicting future events. We have not squarely addressed the relevance of conditions of confinement to a first instance determination, and that question need not be resolved here. n ct, found to be civil, cannot be deemed punitive "as applied" to a single individual in violation of the Double Jeopardy and Ex Post Facto Clauses and provide cause for release. The judgment of the United States Court of ppeals for the Ninth Circuit is therefore reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.	2,108
Justice Scalia	concurring	false	Seling v. Young	2001-01-17	null	https://www.courtlistener.com/opinion/118401/seling-v-young/	https://www.courtlistener.com/api/rest/v3/clusters/118401/	2,001	2000-015	1	8	1	I agree with the Court's holding that a statute, "found to be civil [in nature], cannot be deemed punitive" or criminal "as applied" for purposes of the Ex Post Facto and Double Jeopardy Clauses. Ante this page. The Court accurately observes that this holding gives us "no occasion to consider. . . the extent to which a court may look to actual conditions of confinement and implementation of the statute to determine in the first instance whether a confinement scheme is civil in nature." Ante, at 266. I write separately to dissociate myself from any implication that this reserved point may be an open question. I do not regard it as such since, three 268 years ago, we rejected a similar double jeopardy challenge (based upon the statute's implementation "as applied" to the petitioners), where the statute had not yet been determined to be civil in nature, and where we were making that determination "in the first instance." See Hudson v. United States, 522 U.S. 93 (1997). To be consistent with the most narrow holding of that case (which, unlike this one, did not involve imposition of confinement), any consideration of subsequent implementation in the course of making a "first instance" determination cannot extend to all subsequent implementation, but must be limited to implementation of confinement, and of other impositions that are "not a fixed event," ante, at 263. That, however, would be a peculiar limitation, since even "fixed events" such as the imposition of a fine can, in their implementation, acquire penal aspects exemplified in Hudson by the allegedly punitive size of the fines, and by the availability of reduction for "good-faith" violations, see 522 U.S., at 97-98, 104. Moreover, the language and the reasoning of Hudson leave no room for such a peculiar limitation. In that case, the petitioners contended that the punitive nature of the statute that had been applied to them could be assessed by considering the aforementioned features of the fines. We flatly rejected that contention, which found support in our prior decision in United States v. Halper, 490 U.S. 435 (1989). Halper, we said, had erroneously made a "significant departure" from our prior jurisprudence, in deciding "to `asses[s] the character of the actual sanctions imposed,' 490 U.S., at 447, rather than, as Kennedy [v. Mendoza-Martinez, 372 U.S. 144 (1963),] demanded, evaluating the `statute on its face' to determine whether it provided for what amounted to a criminal sanction, [id.], at 169." 522 U.S., at 101. The Kennedy factors, we said, "`must be considered in relation to the statute on its face,' " 522 U.S., at 100, quoting from Kennedy v. Mendoza-Martinez, 372 U.S. 144, 169 (1963). We held that "[t]he fact that petitioners' 269 `good faith' was considered in determining the amount of the penalty to be imposed in this case [a circumstance that would normally indicate the assessment is punitive] is irrelevant, as we look only to `the statute on its face' to determine whether a penalty is criminal in nature." Hudson, supra, at 104, quoting Kennedy, supra, at 169. We repeated, to be sure, the principle that the statutory scheme would be criminal if it was sufficiently punitive "`either in purpose or effect, ` " Hudson, supra, at 99 (emphasis added), quoting United States v. Ward, 448 U.S. 242, 248-249 (1980), but it was clear from the opinion that this referred to effects apparent upon the face of the statute. The short of the matter is that, for Double Jeopardy and Ex Post Facto Clause purposes, the question of criminal penalty vel non depends upon the intent of the legislature;[] and harsh executive implementation cannot "transfor[m] what was clearly intended as a civil remedy into a criminal penalty," Rex Trailer Co. v. United States, 350 U.S. 148, 154 (1956), any more than compassionate executive implementation can transform a criminal penalty into a civil remedy. This is not to say that there is no relief from a system that administers a facially civil statute in a fashion that would render it criminal. The remedy, however, is not to invalidate the legislature's handiwork under the Double Jeopardy Clause, but to eliminate whatever excess in administration contradicts the statute's civil character. When, as here, a state statute is at issue, the remedy for implementation that does not comport with the civil nature of the statute is resort to the traditional state proceedings that challenge unlawful executive action; if those proceedings fail, and the state 270 courts authoritatively interpret the state statute as permitting impositions that are indeed punitive, then and only then can federal courts pronounce a statute that on its face is civil to be criminal. Such an approach protects federal courts from becoming enmeshed in the sort of intrusive inquiry into local conditions at state institutions that are best left to the State's own judiciary, at least in the first instance. And it avoids federal invalidation of state statutes on the basis of executive implementation that the state courts themselves, given the opportunity, would find to be ultra vires. Only this approach, it seems to me, is in accord with our sound and traditional reluctance to be the initial interpreter of state law. See Railroad Comm'n of Tex. v. Pullman Co., 312 U.S. 496, 500-501 (1941). With this clarification, I join the opinion of the Court. Justice Thomas, concurring in the judgment. We granted certiorari to decide whether "an otherwise valid civil statute can be divested of its civil nature" simply because of an administrative agency's failure to implement the statute according to its terms. Pet. for Cert. i (emphasis added). The majority declines to answer this question. Instead, it assumes that the statute at issue is civilrather than "otherwise . . . civil," or civil "on its face." Young v. Weston, 122 F.3d 38 (CA9 1997). And then it merely holds that a statute that is civil cannot be deemed the opposite of civil"punitive," as the majority puts itas applied to a single individual. Ante, at 267. In explaining this conclusion, the majority expressly reserves judgment on whether the manner of implementation should affect a court's assessment of a statute as civil in the "first instance." Ante, at 263, 267. I write separately to express my view, first, that a statute which is civil on its face cannot be divested of its civil nature simply because of the manner in which it is implemented, and second, that the distinction between a challenge in the 271 "first instance" and a subsequent challenge is one without a difference. Before proceeding, it is important to clarify the issue in this case. The majority adopts the Ninth Circuit's nomenclature and refers to respondent's claim as an "as-applied" challenge, see, e. g., ante, at 263, but that label is at best misleading. Typically an "as-applied" challenge is a claim that a statute, "by its own terms, infringe[s] constitutional freedoms in the circumstances of [a] particular case." United States v. Christian Echoes Nat. Ministry, Inc., 404 U.S. 561, 565 (1972) (per curiam) (emphasis added). In contrast, respondent's claim is not that Washington's Community Protection Act of 1990 (Washington Act or Act), Wash. Rev. Code § 71.09.010 et seq. (1992), "by its own terms" is unconstitutional as applied to him,[1] but rather that the statute is not being applied according to its terms at all.[2] Respondent essentially contends that the actual conditions of confinement, notwithstanding the text of the statute, are punitive and incompatible with the Act's treatment purpose. See ante, at 259-260. 272 A challenge, such as this one, to the implementation of a facially civil statute is not only "unworkable," as the majority puts it, ante, at 263, but also prohibited by our decision in Hudson v. United States, 522 U.S. 93 (1997). In Hudson, we held that, when determining whether a statute is civil or criminal, a court must examine the "statute on its face." Id., at 101, quoting Kennedy v. Mendoza-Martinez, 372 U.S. 144, 169 (1963) (internal quotation marks omitted). In so holding, we expressly disavowed the approach used in United States v. Halper, 490 U.S. 435, 448 (1989), which evaluated the "actual sanctions imposed." 522 U.S., at 101, quoting Halper, supra, at 447 (internal quotation marks omitted). Respondent's claim is flatly inconsistent with the holding of Hudson because respondent asks us to look beyond the face of the Washington Act and to examine instead the actual sanctions imposed on him, that is, the actual conditions of confinement. Respondent argues, and the Ninth Circuit held, that Hudson `s reach is limited to the particular sanctions involved in that casemonetary penalties and occupational disbarmentand does not apply here, where the sanction is confinement. Hudson, however, contains no indication whatsoever that its holding is limited to the specific sanctions at issue. To the contrary, as we explained in Hudson, a court may not elevate to dispositive status any of the factors that it may consider in determining whether a sanction is criminal.[3] 522 U. S., at 101. One of these nondispositive 273 factors is confinement. Id., at 99 (stating that one of the factors is "[w]hether the sanction involves an affirmative disability or restraint," quoting Mendoza-Martinez, supra, at 168 (internal quotation marks omitted)). Yet elevating confinement to dispositive status is exactly what respondent asks us to do when he advances his distinction between confinement and other sanctions. Because Hudson rejects such an argument, respondent's claim fails. An implementation-based challenge to a facially civil statute would be as inappropriate in reviewing the statute in the "first instance," ante, at 263, 267 (majority opinion), as it is here. In the first instance, as here, there is no place for such a challenge in the governing jurisprudence. Hudson, which requires courts to look at the face of the statute, precludes implementation-based challenges at any time. Moreover, the implementation-based claim would be as "unworkable," ante, at 263 (majority opinion), in the first instance as in later challenges. Because the actual conditions of confinement may change over time and may vary from facility to facility, an implementation-based challenge, if successful, would serve to invalidate a statute that may be implemented without any constitutional infirmities at a future time or in a separate facility. To use the majority's words, the validity of a statute should not be "based merely on vagaries in the implementation of the authorizing statute." Ibid. And yet the majority suggests that courts may be able to consider conditions of confinement in determining whether a statute is punitive. Ante, at 263, 266. To the extent that the conditions are actually provided for on the face of the statute, I of course agree. Cf. Hudson, supra, at 101 (directing courts to look at "`the statute on its face' "). However, to the extent that the conditions result from the fact that the statute is not being applied according to its terms, the conditions are not the effect of the statute, but rather the 274 effect of its improper implementation.[4] A suit based on these conditions cannot prevail. * * * The Washington Act does not provide on its face for punitive conditions of confinement, and the actual conditions under which the Act is implemented are of no concern to our inquiry. I therefore concur in the judgment of the Court.	I agree with the Court's holding that a statute, "found to be civil [in nature], cannot be deemed punitive" or criminal "as applied" for purposes of the Ex Post Facto and Double Jeopardy Clauses. Ante this page. The Court accurately observes that this holding gives us "no occasion to consider. the extent to which a court may look to actual conditions of confinement and implementation of the statute to determine in the first instance whether a confinement scheme is civil in nature." Ante, at 266. I write separately to dissociate myself from any implication that this reserved point may be an open question. I do not regard it as such since, three 268 years ago, we rejected a similar double jeopardy challenge (based upon the statute's implementation "as applied" to the petitioners), where the statute had not yet been determined to be civil in nature, and where we were making that determination "in the first instance." See To be consistent with the most narrow holding of that case (which, unlike this one, did not involve imposition of confinement), any consideration of subsequent implementation in the course of making a "first instance" determination cannot extend to all subsequent implementation, but must be limited to implementation of confinement, and of other impositions that are "not a fixed event," ante, at 263. That, however, would be a peculiar limitation, since even "fixed events" such as the imposition of a fine can, in their implementation, acquire penal aspects exemplified in by the allegedly punitive size of the fines, and by the availability of reduction for "good-faith" violations, see -98, 104. Moreover, the language and the reasoning of leave no room for such a peculiar limitation. In that case, the petitioners contended that the punitive nature of the statute that had been applied to them could be assessed by considering the aforementioned features of the fines. We flatly rejected that contention, which found support in our prior decision in United we said, had erroneously made a "significant departure" from our prior jurisprudence, in deciding "to `asses[s] the character of the actual sanctions imposed,' rather than, as [v.] demanded, evaluating the `statute on its face' to determine whether it provided for what amounted to a criminal sanction, [id.], at" The factors, we said, "`must be considered in relation to the statute on its face,' " quoting from We held that "[t]he fact that petitioners' 269 `good faith' was considered in determining the amount of the penalty to be imposed in this case [a circumstance that would normally indicate the assessment is punitive] is irrelevant, as we look only to `the statute on its face' to determine whether a penalty is criminal in nature." quoting at We repeated, to be sure, the principle that the statutory scheme would be criminal if it was sufficiently punitive "`either in purpose or effect, ` " quoting United but it was clear from the opinion that this referred to effects apparent upon the face of the statute. The short of the matter is that, for Double Jeopardy and Ex Post Facto Clause purposes, the question of criminal penalty vel non depends upon the intent of the legislature;[] and harsh executive implementation cannot "transfor[m] what was clearly intended as a civil remedy into a criminal penalty," Rex Trailer any more than compassionate executive implementation can transform a criminal penalty into a civil remedy. This is not to say that there is no relief from a system that administers a facially civil statute in a fashion that would render it criminal. The remedy, however, is not to invalidate the legislature's handiwork under the Double Jeopardy Clause, but to eliminate whatever excess in administration contradicts the statute's civil character. When, as here, a state statute is at issue, the remedy for implementation that does not comport with the civil nature of the statute is resort to the traditional state proceedings that challenge unlawful executive action; if those proceedings fail, and the state 270 courts authoritatively interpret the state statute as permitting impositions that are indeed punitive, then and only then can federal courts pronounce a statute that on its face is civil to be criminal. Such an approach protects federal courts from becoming enmeshed in the sort of intrusive inquiry into local conditions at state institutions that are best left to the State's own judiciary, at least in the first instance. And it avoids federal invalidation of state statutes on the basis of executive implementation that the state courts themselves, given the opportunity, would find to be ultra vires. Only this approach, it seems to me, is in accord with our sound and traditional reluctance to be the initial interpreter of state law. See Railroad Comm'n of With this clarification, I join the opinion of the Court. Justice Thomas, concurring in the judgment. We granted certiorari to decide whether "an otherwise valid civil statute can be divested of its civil nature" simply because of an administrative agency's failure to implement the statute according to its terms. Pet. for Cert. i The majority declines to answer this question. Instead, it assumes that the statute at issue is civilrather than "otherwise civil," or civil "on its face." And then it merely holds that a statute that is civil cannot be deemed the opposite of civil"punitive," as the majority puts itas applied to a single individual. Ante, at 267. In explaining this conclusion, the majority expressly reserves judgment on whether the manner of implementation should affect a court's assessment of a statute as civil in the "first instance." Ante, at 263, 267. I write separately to express my view, first, that a statute which is civil on its face cannot be divested of its civil nature simply because of the manner in which it is implemented, and second, that the distinction between a challenge in the 271 "first instance" and a subsequent challenge is one without a difference. Before proceeding, it is important to clarify the issue in this case. The majority adopts the Ninth Circuit's nomenclature and refers to respondent's claim as an "as-applied" challenge, see, e. g., ante, at 263, but that label is at best misleading. Typically an "as-applied" challenge is a claim that a statute, "by its own terms, infringe[s] constitutional freedoms in the circumstances of [a] particular case." United In contrast, respondent's claim is not that Washington's Community Protection Act of 1990 (Washington Act or Act), et seq. (1992), "by its own terms" is unconstitutional as applied to him,[1] but rather that the statute is not being applied according to its terms at all.[2] Respondent essentially contends that the actual conditions of confinement, notwithstanding the text of the statute, are punitive and incompatible with the Act's treatment purpose. See ante, at 259-260. 272 A challenge, such as this one, to the implementation of a facially civil statute is not only "unworkable," as the majority puts it, ante, at 263, but also prohibited by our decision in In we held that, when determining whether a statute is civil or criminal, a court must examine the "statute on its face." quoting In so holding, we expressly disavowed the approach used in United which evaluated the "actual sanctions imposed." quoting Respondent's claim is flatly inconsistent with the holding of because respondent asks us to look beyond the face of the Washington Act and to examine instead the actual sanctions imposed on him, that is, the actual conditions of confinement. Respondent argues, and the Ninth Circuit held, that `s reach is limited to the particular sanctions involved in that casemonetary penalties and occupational disbarmentand does not apply here, where the sanction is confinement. however, contains no indication whatsoever that its holding is limited to the specific sanctions at issue. To the contrary, as we explained in a court may not elevate to dispositive status any of the factors that it may consider in determining whether a sanction is criminal.[3] 522 U. S., One of these nondispositive 273 factors is confinement. (stating that one of the factors is "[w]hether the sanction involves an affirmative disability or restraint," quoting ). Yet elevating confinement to dispositive status is exactly what respondent asks us to do when he advances his distinction between confinement and other sanctions. Because rejects such an argument, respondent's claim fails. An implementation-based challenge to a facially civil statute would be as inappropriate in reviewing the statute in the "first instance," ante, at 263, 267 (majority opinion), as it is here. In the first instance, as here, there is no place for such a challenge in the governing jurisprudence. which requires courts to look at the face of the statute, precludes implementation-based challenges at any time. Moreover, the implementation-based claim would be as "unworkable," ante, at 263 (majority opinion), in the first instance as in later challenges. Because the actual conditions of confinement may change over time and may vary from facility to facility, an implementation-based challenge, if successful, would serve to invalidate a statute that may be implemented without any constitutional infirmities at a future time or in a separate facility. To use the majority's words, the validity of a statute should not be "based merely on vagaries in the implementation of the authorizing statute." And yet the majority suggests that courts may be able to consider conditions of confinement in determining whether a statute is punitive. Ante, at 263, 266. To the extent that the conditions are actually provided for on the face of the statute, I of course agree. Cf. However, to the extent that the conditions result from the fact that the statute is not being applied according to its terms, the conditions are not the effect of the statute, but rather the 274 effect of its improper implementation.[4] A suit based on these conditions cannot prevail. * * * The Washington Act does not provide on its face for punitive conditions of confinement, and the actual conditions under which the Act is implemented are of no concern to our inquiry. I therefore concur in the judgment of the Court.	2,109
Justice Stevens	dissenting	false	Seling v. Young	2001-01-17	null	https://www.courtlistener.com/opinion/118401/seling-v-young/	https://www.courtlistener.com/api/rest/v3/clusters/118401/	2,001	2000-015	1	8	1	A sexual predator may be imprisoned for violating the law, and, if he is mentally ill, he may be committed to an institution until he is cured. Whether a specific statute authorizing the detention of such a person is properly viewed as "criminal" or "civil" in the context of federal constitutional issues is often a question of considerable difficulty. See Kansas v. Hendricks, 521 U.S. 346 (1997) (reversing, by a 5-to-4 vote, a decision of the Kansas Supreme Court invalidating 275 Kansas' Sexually Violent Predator Act); Allen v. Illinois, 478 U.S. 364 (1986) (upholding, by a 5-to-4 vote, Illinois' Sexually Dangerous Persons Act); In re Young, 122 Wash. 2d 1, 857 P.2d 989 (1993) (en banc) (upholding, by a 5-to-4 vote, the provisions of Washington's Community Protection Act of 1990 dealing with sexually violent predators). It is settled, however, that the question whether a state statute is civil or criminal in nature for purposes of complying with the demands of the Federal Constitution is a question of federal law. If a detainee comes forward with "`the clearest proof' that `the statutory scheme [is] so punitive either in purpose or effect as to negate [the State's] intention' that the proceeding be civil, it must be considered criminal." Allen, 478 U. S., at 369 (quoting United States v. Ward, 448 U.S. 242, 248-249 (1980)) (emphasis added). See also Hudson v. United States, 522 U.S. 93, 100, 105 (1997). Accordingly, we have consistently looked to the conditions of confinement as evidence of both the legislative purpose behind the statute and its actual effect. See Hendricks, 521 U. S., at 361, 367-369; Schall v. Martin, 467 U.S. 253, 269 271 (1984); Allen, 478 U. S., at 369, 373-374. As we have acknowledged in those cases, the question whether a statute is in fact punitive cannot always be answered solely by reference to the text of the statute. The majority in this case, however, incorrectly assumes that the Act at issue is necessarily civil. The issue the majority purports to resolve is whether an Act that is otherwise civil in nature can be deemed criminal in a specific instance based on evidence of its application to a particular prisoner. However, respondent Young's petition did not present that issue. Rather, consistent with our case law, Young sought to introduce evidence of the conditions of confinement as evidence of the punitive purpose and effect of the Washington statute. See Amended Pet. for Writ of Habeas Corpus 6 and Supp. Brief on Remand 2, 6, 10-11, in No. C94-480C (WD Wash.), Record, Doc. Nos. 57, 155. As a result, Young in no 276 way runs afoul of Hudson v. United States, 522 U.S. 93 (1997). Properly read, Hudson acknowledges that resolving whether an Act is civil or criminal in nature can take into account whether the statutory scheme has a punitive effect.[1]Id., at 99. What Hudson rejects is an approach not taken by respondentone that bypasses this threshold question in favor of a dispositive focus on the sanction actually imposed on the specific individual.[2]Id., at 101-102. To be sure, the question whether an Act is civil or punitive in nature "is initially one of statutory construction." Ante, at 261 (majority opinion). However, under the majority's analysis, there is no inquiry beyond that of statutory construction. Ante, at 263. In essence, the majority argues that because the constitutional query must be answered definitively and because confinement is not a "fixed event," conditions of confinement should not be considered at all, except in the first challenge to a statute, when, as a practical matter, *277 the evidence of such conditions is most likely not to constitute the requisite "clearest proof." This seems to me quite wrong. If conditions of confinement are such that a detainee has been punished twice in violation of the Double Jeopardy Clause, it is irrelevant that the scheme has been previously labeled as civil without full knowledge of the effects of the statute.[3] In this case, Young has made detailed allegations concerning both the absence of treatment for his alleged mental illness and the starkly punitive character of the conditions of his confinement. If proved, those allegations establish not just that those detained pursuant to the statute are treated like those imprisoned for violations of Washington's criminal laws, but that, in many respects, they receive significantly worse treatment.[4] If those allegations are correct, the statute in question should be characterized as a criminal law for federal constitutional purposes. I therefore agree with the Court of Appeals' conclusion that respondent should be given the opportunity to come forward with the "clearest proof" that his allegations are true. Accordingly, I respectfully dissent.	A sexual predator may be imprisoned for violating the law, and, if he is mentally ill, he may be committed to an institution until he is cured. Whether a specific statute authorizing the detention of such a person is properly viewed as "criminal" or "civil" in the context of federal constitutional issues is often a question of considerable difficulty. See ; ; In re Young, (upholding, by a 5-to-4 vote, the provisions of Washington's Community Protection Act of 1990 dealing with sexually violent predators). It is settled, however, that the question whether a state statute is civil or criminal in nature for purposes of complying with the demands of the Federal Constitution is a question of federal law. If a detainee comes forward with "`the clearest proof' that `the statutory scheme [is] so punitive either in purpose or effect as to negate [the State's] intention' that the proceeding be civil, it must be considered criminal." ) (emphasis added). See also Accordingly, we have consistently looked to the conditions of confinement as evidence of both the legislative purpose behind the statute and its actual effect. See 367-369; ; 373-374. As we have acknowledged in those cases, the question whether a statute is in fact punitive cannot always be answered solely by reference to the text of the statute. The majority in this case, however, incorrectly assumes that the Act at issue is necessarily civil. The issue the majority purports to resolve is whether an Act that is otherwise civil in nature can be deemed criminal in a specific instance based on evidence of its application to a particular prisoner. However, respondent Young's petition did not present that issue. Rather, consistent with our case law, Young sought to introduce evidence of the conditions of confinement as evidence of the punitive purpose and effect of the Washington statute. See Amended Pet. for Writ of Habeas Corpus 6 and Supp. Brief on Remand 2, 6, 10-11, in No. C94-480C (WD Wash.), Record, Doc. Nos. 57, 155. As a result, Young in no 276 way runs afoul of Properly read, Hudson acknowledges that resolving whether an Act is civil or criminal in nature can take into account whether the statutory scheme has a punitive effect.[1]Id., at 99. What Hudson rejects is an approach not taken by respondentone that bypasses this threshold question in favor of a dispositive focus on the sanction actually imposed on the specific individual.[2]Id., at 101-102. To be sure, the question whether an Act is civil or punitive in nature "is initially one of statutory construction." Ante, at 261 (majority opinion). However, under the majority's analysis, there is no inquiry beyond that of statutory construction. Ante, at 263. In essence, the majority argues that because the constitutional query must be answered definitively and because confinement is not a "fixed event," conditions of confinement should not be considered at all, except in the first challenge to a statute, when, as a practical matter, 277 the evidence of such conditions is most likely not to constitute the requisite "clearest proof." This seems to me quite wrong. If conditions of confinement are such that a detainee has been punished twice in violation of the Double Jeopardy Clause, it is irrelevant that the scheme has been previously labeled as civil without full knowledge of the effects of the statute.[3] In this case, Young has made detailed allegations concerning both the absence of treatment for his alleged mental illness and the starkly punitive character of the conditions of his confinement. If proved, those allegations establish not just that those detained pursuant to the statute are treated like those imprisoned for violations of Washington's criminal laws, but that, in many respects, they receive significantly worse treatment.[4] If those allegations are correct, the statute in question should be characterized as a criminal law for federal constitutional purposes. I therefore agree with the Court of Appeals' conclusion that respondent should be given the opportunity to come forward with the "clearest proof" that his allegations are true. Accordingly, I respectfully dissent.	2,110
Justice Alito	majority	false	Limelight Networks, Inc. v. Akamai Technologies, Inc.	2014-06-02	null	https://www.courtlistener.com/opinion/2676592/limelight-networks-inc-v-akamai-technologies-inc/	https://www.courtlistener.com/api/rest/v3/clusters/2676592/	2,014	2013-051	2	9	0	This case presents the question whether a defendant may be liable for inducing infringement of a patent under 35 U.S. C. §271(b) when no one has directly infringed the patent under §271(a) or any other statutory provision. The statutory text and structure and our prior case law require that we answer this question in the negative. We accordingly reverse the Federal Circuit, which reached the opposite conclusion. I A Respondent the Massachusetts Institute of Technology is the assignee of U. S. Patent No. 6,108,703 (’703 patent), which claims a method of delivering electronic data using a “content delivery network,” or “CDN.” Respondent Akamai Technologies, Inc., is the exclusive licensee. Akamai maintains many servers distributed in various locations. Proprietors of Web sites, known as “content providers,” contract with Akamai to deliver their Web sites’ content to individual Internet users. The ’703 patent provides for the designation of certain components of a 2 LIMELIGHT NETWORKS, INC. v. AKAMAI TECHNOLOGIES, INC. Opinion of the Court content provider’s Web site (often large files, such as video or music files) to be stored on Akamai’s servers and ac- cessed from those servers by Internet users. The process of designating components to be stored on Akamai’s serv- ers is known as “tagging.” By “aggregat[ing] the data demands of multiple content providers with differing peak usage patterns and serv[ing] that content from multiple servers in multiple locations,” 614 F. Supp. 2d 90, 96 (Mass. 2009), as well as by delivering content from servers located in the same geographic area as the users who are attempting to access it, Akamai is able to increase the speed with which Internet users access the content of its customers’ Web sites. Petitioner Limelight Networks, Inc., also operates a CDN and carries out several of the steps claimed in the ’703 patent. But instead of tagging those components of its customers’ Web sites that it intends to store on its servers (a step included in the ’703 patent), Limelight requires its customers to do their own tagging.1 Respondents claim that Limelight “provides instructions and offers technical assistance” to its customers regarding how to tag, 629 F.3d 1311, 1321 (CA Fed. 2010), but the record is undis- puted that Limelight does not tag the components to be stored on its servers. B In 2006, respondents sued Limelight in the United States District Court for the District of Massachusetts, claiming patent infringement. The case was tried to a jury, which found that Limelight had committed infringe- ment and awarded more than $40 million in damages. Respondents’ victory was short-lived, however. After —————— 1 In its brief, Limelight disputes whether its customers actually “tag” within the meaning of the patent. Brief for Petitioner 7, n. 4. We assume arguendo that Limelight’s customers do in fact “tag” within the patent’s meaning. Cite as: 572 U. S. ____ (2014) 3 Opinion of the Court the jury returned its verdict, the Federal Circuit decided Muniauction, Inc. v. Thomson Corp., 532 F.3d 1318 (2008). In that case the Court of Appeals rejected a claim that the defendant’s method, involving bidding on finan- cial instruments using a computer system, directly in- fringed the plaintiff ’s patent. The defendant performed some of the steps of the patented method, and its custom- ers, to whom the defendant gave access to its system along with instructions on the use of the system, performed the remaining steps. The court started from “the proposition that direct infringement requires a single party to perform every step of a claimed method.” Id., at 1329. This re- quirement is satisfied even though the steps are actually undertaken by multiple parties, the court explained, if a single defendant “exercises ‘control or direction’ over the entire process such that every step is attributable to the controlling party.” Ibid. The court held that the defend- ant in Muniauction was not liable for direct infringement because it did not exercise control or direction over its customers’ performance of those steps of the patent that the defendant itself did not perform. Id., at 1330. In light of Muniauction, Limelight moved for reconsid- eration of its earlier motion for judgment as a matter of law, which the District Court had denied. The District Court granted the motion, concluding that Muniauction precluded a finding of direct infringement under §271(a) because infringement of the ’703 patent required tagging and Limelight does not control or direct its customers’ tagging. A panel of the Federal Circuit affirmed, explain- ing that a defendant that does not itself undertake all of a patent’s steps can be liable for direct infringement only “when there is an agency relationship between the parties who perform the method steps or when one party is con- tractually obligated to the other to perform the steps.” 629 F.3d, at 1320. Since neither of these conditions was met in the present case, the Federal Circuit panel held that 4 LIMELIGHT NETWORKS, INC. v. AKAMAI TECHNOLOGIES, INC. Opinion of the Court Limelight could not be held liable for direct infringement.2 Ibid. The Federal Circuit granted en banc review and re- versed. The en banc court found it unnecessary to revisit its §271(a) direct infringement case law. Instead, it con- cluded that the “evidence could support a judgment in [respondents’] favor on a theory of induced infringement” under §271(b). 692 F.3d 1301, 1319 (2012) (per curiam). This was true, the court explained, because §271(b) liabil- ity arises when a defendant carries out some steps consti- tuting a method patent and encourages others to carry out the remaining steps—even if no one would be liable as a direct infringer in such circumstances, because those who performed the remaining steps did not act as agents of, or under the direction or control of, the defendant. The Court of Appeals did not dispute that “there can be no indirect infringement without direct infringement,” id., at 1308, but it explained that “[r]equiring proof that there has been direct infringement . . . is not the same as requir- ing proof that a single party would be liable as a direct infringer,” id., at 1308–1309 (emphasis deleted). Judge Newman and Judge Linn both dissented (with the latter joined by Judges Dyk, Prost, and O’Malley). Limelight sought certiorari, which we granted. 571 U. S. ___ (2014). II A Neither the Federal Circuit, see 692 F.3d, at 1308, nor respondents, see Tr. of Oral Arg. 44, dispute the proposi- tion that liability for inducement must be predicated on —————— 2 The panel noted that Limelight’s contracts instruct its customers to tag the components they wish to be stored on Limelight’s CDN, but concluded that, because these contracts did not give Limelight control over its customers, the customers’ tagging could not be attributed to Limelight. See 629 F.3d, at 1321. Cite as: 572 U. S. ____ (2014) 5 Opinion of the Court direct infringement. This is for good reason, as our case law leaves no doubt that inducement liability may arise “if, but only if, [there is] . . . direct infringement.” Aro Mfg. Co. v. Convertible Top Replacement Co., 365 U. S 336, 341 (1961) (emphasis deleted).3 One might think that this simple truth is enough to dispose of this appeal. But the Federal Circuit reasoned that a defendant can be liable for inducing infringement under §271(b) even if no one has committed direct in- fringement within the terms of §271(a) (or any other pro- vision of the patent laws), because direct infringement can exist independently of a violation of these statutory provi- sions. See 692 F.3d, at 1314. The Federal Circuit’s analysis fundamentally misunder- stands what it means to infringe a method patent. A method patent claims a number of steps; under this Court’s case law, the patent is not infringed unless all the steps are carried out. See, e.g., Aro, supra, at 344 (a “pat- ent covers only the totality of the elements in the claim and . . . no element, separately viewed, is within the grant”). This principle follows ineluctably from what a patent is: the conferral of rights in a particular claimed set of elements. “Each element contained in a patent claim is deemed material to defining the scope of the patented invention,” Warner-Jenkinson Co. v. Hilton Davis Chemi- cal Co., 520 U.S. 17, 29 (1997), and a patentee’s rights extend only to the claimed combination of elements, and no further. The Federal Circuit held in Muniauction that a meth- od’s steps have not all been performed as claimed by the patent unless they are all attributable to the same de- —————— 3 Aro addressed contributory infringement under §271(c), rather than inducement of infringement under §271(b), but we see no basis to distinguish for these purposes between the two, which after all spring from common stock. See Global-Tech Appliances, Inc. v. SEB S. A., 563 U. S. ___, ___ (2011) (slip op., at 8). 6 LIMELIGHT NETWORKS, INC. v. AKAMAI TECHNOLOGIES, INC. Opinion of the Court fendant, either because the defendant actually performed those steps or because he directed or controlled others who performed them. See 532 F.3d, at 1329–1330. Assuming without deciding that the Federal Circuit’s holding in Muniauction is correct, there has simply been no in- fringement of the method in which respondents have staked out an interest, because the performance of all the patent’s steps is not attributable to any one person. And, as both the Federal Circuit and respondents admit, where there has been no direct infringement, there can be no inducement of infringement under §271(b). The Federal Circuit’s contrary view would deprive §271(b) of ascertainable standards. If a defendant can be held liable under §271(b) for inducing conduct that does not constitute infringement, then how can a court assess when a patent holder’s rights have been invaded? What if a defendant pays another to perform just one step of a 12- step process, and no one performs the other steps, but that one step can be viewed as the most important step in the process? In that case the defendant has not encouraged infringement, but no principled reason prevents him from being held liable for inducement under the Federal Cir- cuit’s reasoning, which permits inducement liability when fewer than all of a method’s steps have been performed within the meaning of the patent. The decision below would require the courts to develop two parallel bodies of infringement law: one for liability for direct infringement, and one for liability for inducement. Section 271(f)(1) reinforces our reading of §271(b). That subsection imposes liability on a party who “supplies or causes to be supplied in or from the United States all or a substantial portion of the components of a patented inven- tion . . . in such manner as to actively induce the combina- tion of such components outside of the United States in a manner that would infringe the patent if such combination occurred within the United States” (emphasis added). As Cite as: 572 U. S. ____ (2014) 7 Opinion of the Court this provision illustrates, when Congress wishes to impose liability for inducing activity that does not itself constitute direct infringement, it knows precisely how to do so. The courts should not create liability for inducement of non- infringing conduct where Congress has elected not to extend that concept. The Federal Circuit seems to have adopted the view that Limelight induced infringement on the theory that the steps that Limelight and its customers perform would infringe the ’703 patent if all the steps were performed by the same person. But we have already rejected the notion that conduct which would be infringing in altered circum- stances can form the basis for contributory infringement, and we see no reason to apply a different rule for induce- ment. In Deepsouth Packing Co. v. Laitram Corp., 406 U.S. 518 (1972), a manufacturer produced components of a patented machine and then exported those components overseas to be assembled by its foreign customers.4 (The assembly by the foreign customers did not violate U. S. patent laws.) In both Deepsouth and this case, the conduct that the defendant induced or contributed to would have been infringing if committed in altered circumstances: in Deepsouth if the machines had been assembled in the United States, see id., at 526, and in this case if perfor- mance of all of the claimed steps had been attributable to the same person. In Deepsouth, we rejected the possibility of contributory infringement because the machines had not been assembled in the United States, and direct in- fringement had consequently never occurred. See id., at 526–527. Similarly, in this case, performance of all the claimed steps cannot be attributed to a single person, so direct infringement never occurred. Limelight cannot be liable for inducing infringement that never came to pass. —————— 4 Section 271(f) now prohibits the exporter’s conduct at issue in Deepsouth. 8 LIMELIGHT NETWORKS, INC. v. AKAMAI TECHNOLOGIES, INC. Opinion of the Court B Respondents’ arguments in support of the Federal Cir- cuit’s reading of the statute are unpersuasive. First, respondents note that tort law imposes liability on a de- fendant who harms another through a third party, even if that third party would not himself be liable, and respond- ents contend that, given the background tort principles against which the Patent Act of 1952 was enacted, it should not matter that no one is liable for direct infringe- ment in this case. But the reason Limelight could not have induced infringement under §271(b) is not that no third party is liable for direct infringement; the problem, instead, is that no direct infringement was committed. Muniauction (which, again, we assume to be correct) instructs that a method patent is not directly infringed— and the patentee’s interest is thus not violated—unless a single actor can be held responsible for the performance of all steps of the patent. Because Limelight did not under- take all steps of the ’703 patent and cannot otherwise be held responsible for all those steps, respondents’ rights have not been violated. Unsurprisingly, respondents point us to no tort case in which liability was imposed because a defendant caused an innocent third party to undertake action that did not violate the plaintiff ’s legal rights. In a related argument, respondents contend that, at tort, liability sometimes attaches where two or more de- fendants inflict injury, even if each defendant’s conduct, standing alone, would not be actionable. See W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Torts §52, p. 354 (5th ed. 1984) (multiple defendants who each add negligible impurities to stream liable if aggre- gate impurities cause harm). But the rationale for impos- ing liability in these circumstances is that the defendants collectively invaded the plaintiff ’s protected interests. See ibid. By contrast, under the Muniauction rule, respond- ents’ interests in the ’713 patent have not been invaded. Cite as: 572 U. S. ____ (2014) 9 Opinion of the Court Second, respondents seek to analogize §271(b) to the federal aiding and abetting statute, 18 U.S. C. §2, and they argue that two parties who divide all the necessary elements of a crime between them are both guilty under §2. The analogy does not hold up. The aiding and abet- ting statute must be read “against its common-law back- ground,” Standefer v. United States, 447 U.S. 10, 19 (1980), and at common law two or more defendants, each of whom committed an element of a crime, were liable as principals. See, e.g., 1 J. Bishop, Commentaries on the Criminal Law §649, p. 392 (7th ed. 1882). While we have drawn on criminal law concepts in the past in interpreting §271(b), see Global-Tech Appliances, Inc. v. SEB S. A., 563 U. S. ___, ___ (2011) (slip op., at 10–12), we think it un- likely that Congress had this particular doctrine in mind when it enacted the Patent Act of 1952, given the doc- trine’s inconsistency with the Act’s cornerstone principle that patentees have a right only to the set of elements claimed in their patents and nothing further. Third, respondents contend that patent law principles established before the enactment of the Patent Act demon- strate that a defendant that performs some steps of a patent with the purpose of having its customers perform the remaining steps is liable for inducing infringement. But here, too, the nature of the rights created by the Pat- ent Act defeats the notion that Congress could have intended to permit inducement liability where there is no underlying direct infringement. According to respondents, their understanding of the pre-1952 doctrine casts doubt on the Muniauction rule for direct infringement under §271(a), on the ground that that rule has the indirect effect of preventing inducement liability where Congress would have wanted it. But the possibility that the Federal Circuit erred by too narrowly circumscribing the scope of §271(a) is no reason for this Court to err a second time by misconstruing §271(b) to impose liability for inducing 10 LIMELIGHT NETWORKS, INC. v. AKAMAI TECHNOLOGIES, INC. Opinion of the Court infringement where no infringement has occurred. Finally, respondents, like the Federal Circuit, criticize our interpretation of §271(b) as permitting a would-be infringer to evade liability by dividing performance of a method patent’s steps with another whom the defendant neither directs nor controls. We acknowledge this concern. Any such anomaly, however, would result from the Fed- eral Circuit’s interpretation of §271(a) in Muniauction. A desire to avoid Muniauction’s natural consequences does not justify fundamentally altering the rules of inducement liability that the text and structure of the Patent Act clearly require—an alteration that would result in its own serious and problematic consequences, namely, creating for §271(b) purposes some free-floating concept of “in- fringement” both untethered to the statutory text and difficult for the lower courts to apply consistently. III Respondents ask us to review the merits of the Federal Circuit’s Muniauction rule for direct infringement under §271(a). We decline to do so today. In the first place, the question presented is clearly focused on §271(b), not §271(a). We granted certiorari on the following question: “Whether the Federal Circuit erred in holding that a defendant may be held liable for inducing patent infringement under 35 U.S. C. §271(b) even though no one has committed direct infringement under §271(a).” Pet. for Cert. i. The question presupposes that Limelight has not committed direct infringement under §271(a). And since the question on which we granted certiorari did not involve §271(a), petitioner did not address that im- portant issue in its opening brief. Our decision on the §271(b) question necessitates a remand to the Federal Circuit, and on remand, the Federal Circuit will have the opportunity to revisit the §271(a) question if it so chooses. Cite as: 572 U. S. ____ (2014) 11 Opinion of the Court IV The judgment below is reversed, and the case is re- manded for further proceedings consistent with this opinion. It is so ordered	This case presents the question whether a defendant may be liable for inducing infringement of a patent under 35 U.S. C. when no one has directly infringed the patent under or any other statutory provision. The statutory text and structure and our prior case law require that we answer this question in the negative. We accordingly reverse the Federal Circuit, which reached the opposite conclusion. I A Respondent the Massachusetts Institute of Technology is the assignee of U. S. Patent No. 6,108,703 (’703 patent), which claims a method of delivering electronic data using a “content delivery network,” or “CDN.” Respondent Akamai Technologies, Inc., is the exclusive licensee. Akamai maintains many servers distributed in various locations. Proprietors of Web sites, known as “content providers,” contract with Akamai to deliver their Web sites’ content to individual Internet users. The ’703 patent provides for the designation of certain components of a 2 LIMELIGHT NETWORKS, INC. v. AKAMAI TECHNOLOGIES, INC. Opinion of the Court content provider’s Web site (often large files, such as video or music files) to be stored on Akamai’s servers and ac- cessed from those servers by Internet users. The process of designating components to be stored on Akamai’s serv- ers is known as “tagging.” By “aggregat[ing] the data demands of multiple content providers with differing peak usage patterns and serv[ing] that content from multiple servers in multiple locations,” (Mass. 2009), as well as by delivering content from servers located in the same geographic area as the users who are attempting to access it, Akamai is able to increase the speed with which Internet users access the content of its customers’ Web sites. Petitioner Limelight Networks, Inc., also operates a CDN and carries out several of the steps claimed in the ’703 patent. But instead of tagging those components of its customers’ Web sites that it intends to store on its servers (a step included in the ’703 patent), Limelight requires its customers to do their own tagging.1 Respondents claim that Limelight “provides instructions and offers technical assistance” to its customers regarding how to tag, 6 F.3d 1311, 1321 (CA Fed. 2010), but the record is undis- puted that Limelight does not tag the components to be stored on its servers. B In 2006, respondents sued Limelight in the United States District Court for the District of Massachusetts, claiming patent infringement. The case was tried to a jury, which found that Limelight had committed infringe- ment and awarded more than $40 million in damages. Respondents’ victory was short-lived, however. After —————— 1 In its brief, Limelight disputes whether its customers actually “tag” within the meaning of the patent. Brief for Petitioner 7, n. 4. We assume arguendo that Limelight’s customers do in fact “tag” within the patent’s meaning. Cite as: 572 U. S. (2014) 3 Opinion of the Court the jury returned its verdict, the Federal Circuit decided Muniauction, (2008). In that case the Court of Appeals rejected a claim that the defendant’s method, involving bidding on finan- cial instruments using a computer system, directly in- fringed the plaintiff ’s patent. The defendant performed some of the steps of the patented method, and its custom- ers, to whom the defendant gave access to its system along with instructions on the use of the system, performed the remaining steps. The court started from “the proposition that direct infringement requires a single party to perform every step of a claimed method.” This re- quirement is satisfied even though the steps are actually undertaken by multiple parties, the court explained, if a single defendant “exercises ‘control or direction’ over the entire process such that every step is attributable to the controlling party.” The court held that the defend- ant in Muniauction was not liable for direct infringement because it did not exercise control or direction over its customers’ performance of those steps of the patent that the defendant itself did not perform. In light of Muniauction, Limelight moved for reconsid- eration of its earlier motion for judgment as a matter of law, which the District Court had denied. The District Court granted the motion, concluding that Muniauction precluded a finding of direct infringement under because infringement of the ’703 patent required tagging and Limelight does not control or direct its customers’ tagging. A panel of the Federal Circuit affirmed, explain- ing that a defendant that does not itself undertake all of a patent’s steps can be liable for direct infringement only “when there is an agency relationship between the parties who perform the method steps or when one party is con- tractually obligated to the other to perform the steps.” 6 F.3d, at 1320. Since neither of these conditions was met in the present case, the Federal Circuit panel held that 4 LIMELIGHT NETWORKS, INC. v. AKAMAI TECHNOLOGIES, INC. Opinion of the Court Limelight could not be held liable for direct infringement.2 The Federal Circuit granted en banc review and re- versed. The en banc court found it unnecessary to revisit its direct infringement case law. Instead, it con- cluded that the “evidence could support a judgment in [respondents’] favor on a theory of induced infringement” under This was true, the court explained, because liabil- ity arises when a defendant carries out some steps consti- tuting a method patent and encourages others to carry out the remaining steps—even if no one would be liable as a direct infringer in such circumstances, because those who performed the remaining steps did not act as agents of, or under the direction or control of, the defendant. The Court of Appeals did not dispute that “there can be no indirect infringement without direct infringement,” at 1308, but it explained that “[r]equiring proof that there has been direct infringement is not the same as requir- ing proof that a single party would be liable as a direct infringer,” at 1308–1309 (emphasis deleted). Judge Newman and Judge Linn both dissented (with the latter joined by Judges Dyk, Prost, and O’Malley). Limelight sought certiorari, which we granted. 571 U. S. (2014). II A Neither the Federal Circuit, see nor respondents, see Tr. of Oral Arg. 44, dispute the proposi- tion that liability for inducement must be predicated on —————— 2 The panel noted that Limelight’s contracts instruct its customers to tag the components they wish to be stored on Limelight’s CDN, but concluded that, because these contracts did not give Limelight control over its customers, the customers’ tagging could not be attributed to Limelight. See Cite as: 572 U. S. (2014) 5 Opinion of the Court direct infringement. This is for good reason, as our case law leaves no doubt that inducement liability may arise “if, but only if, [there is] direct infringement.” Mfg. Co. v. Convertible Top Replacement Co., 365 U. S 336, 341 (11) (emphasis deleted).3 One might think that this simple truth is enough to dispose of this appeal. But the Federal Circuit reasoned that a defendant can be liable for inducing infringement under even if no one has committed direct in- fringement within the terms of (or any other pro- vision of the patent laws), because direct infringement can exist independently of a violation of these statutory provi- sions. See The Federal Circuit’s analysis fundamentally misunder- stands what it means to infringe a method patent. A method patent claims a number of steps; under this Court’s case law, the patent is not infringed unless all the steps are carried out. See, e.g., (a “pat- ent covers only the totality of the elements in the claim and no element, separately viewed, is within the grant”). This principle follows ineluctably from what a patent is: the conferral of rights in a particular claimed set of elements. “Each element contained in a patent claim is deemed material to defining the scope of the patented invention,” Warner-Jenkinson and a patentee’s rights extend only to the claimed combination of elements, and no further. The Federal Circuit held in Muniauction that a meth- od’s steps have not all been performed as claimed by the patent unless they are all attributable to the same de- —————— 3 addressed contributory infringement under rather than inducement of infringement under but we see no basis to distinguish for these purposes between the two, which after all spring from common stock. See Global-Tech Appliances, Inc. v. SEB S. A., 563 U. S. (2011) (slip op., at 8). 6 LIMELIGHT NETWORKS, INC. v. AKAMAI TECHNOLOGIES, INC. Opinion of the Court fendant, either because the defendant actually performed those steps or because he directed or controlled others who performed them. See 532 F.3d, –1330. Assuming without deciding that the Federal Circuit’s holding in Muniauction is correct, there has simply been no in- fringement of the method in which respondents have staked out an interest, because the performance of all the patent’s steps is not attributable to any one person. And, as both the Federal Circuit and respondents admit, where there has been no direct infringement, there can be no inducement of infringement under The Federal Circuit’s contrary view would deprive of ascertainable standards. If a defendant can be held liable under for inducing conduct that does not constitute infringement, then how can a court assess when a patent holder’s rights have been invaded? What if a defendant pays another to perform just one step of a 12- step process, and no one performs the other steps, but that one step can be viewed as the most important step in the process? In that case the defendant has not encouraged infringement, but no principled reason prevents him from being held liable for inducement under the Federal Cir- cuit’s reasoning, which permits inducement liability when fewer than all of a method’s steps have been performed within the meaning of the patent. The decision below would require the courts to develop two parallel bodies of infringement law: one for liability for direct infringement, and one for liability for inducement. Section 271(f)(1) reinforces our reading of That subsection imposes liability on a party who “supplies or causes to be supplied in or from the United States all or a substantial portion of the components of a patented inven- tion in such manner as to actively induce the combina- tion of such components outside of the United States in a manner that would infringe the patent if such combination occurred within the United States” (emphasis added). As Cite as: 572 U. S. (2014) 7 Opinion of the Court this provision illustrates, when Congress wishes to impose liability for inducing activity that does not itself constitute direct infringement, it knows precisely how to do so. The courts should not create liability for inducement of non- infringing conduct where Congress has elected not to extend that concept. The Federal Circuit seems to have adopted the view that Limelight induced infringement on the theory that the steps that Limelight and its customers perform would infringe the ’703 patent if all the steps were performed by the same person. But we have already rejected the notion that conduct which would be infringing in altered circum- stances can form the basis for contributory infringement, and we see no reason to apply a different rule for induce- ment. In Deepsouth Packing Co. v. Laitram Corp., 406 U.S. 518 (72), a manufacturer produced components of a patented machine and then exported those components overseas to be assembled by its foreign customers.4 (The assembly by the foreign customers did not violate U. S. patent laws.) In both Deepsouth and this case, the conduct that the defendant induced or contributed to would have been infringing if committed in altered circumstances: in Deepsouth if the machines had been assembled in the United States, see and in this case if perfor- mance of all of the claimed steps had been attributable to the same person. In Deepsouth, we rejected the possibility of contributory infringement because the machines had not been assembled in the United States, and direct in- fringement had consequently never occurred. See at 526–527. Similarly, in this case, performance of all the claimed steps cannot be attributed to a single person, so direct infringement never occurred. Limelight cannot be liable for inducing infringement that never came to pass. —————— 4 Section 271(f) now prohibits the exporter’s conduct at issue in Deepsouth. 8 LIMELIGHT NETWORKS, INC. v. AKAMAI TECHNOLOGIES, INC. Opinion of the Court B Respondents’ arguments in support of the Federal Cir- cuit’s reading of the statute are unpersuasive. First, respondents note that tort law imposes liability on a de- fendant who harms another through a third party, even if that third party would not himself be liable, and respond- ents contend that, given the background tort principles against which the Patent Act of 52 was enacted, it should not matter that no one is liable for direct infringe- ment in this case. But the reason Limelight could not have induced infringement under is not that no third party is liable for direct infringement; the problem, instead, is that no direct infringement was committed. Muniauction (which, again, we assume to be correct) instructs that a method patent is not directly infringed— and the patentee’s interest is thus not violated—unless a single actor can be held responsible for the performance of all steps of the patent. Because Limelight did not under- take all steps of the ’703 patent and cannot otherwise be held responsible for all those steps, respondents’ rights have not been violated. Unsurprisingly, respondents point us to no tort case in which liability was imposed because a defendant caused an innocent third party to undertake action that did not violate the plaintiff ’s legal rights. In a related argument, respondents contend that, at tort, liability sometimes attaches where two or more de- fendants inflict injury, even if each defendant’s conduct, standing alone, would not be actionable. See W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Torts p. 354 (5th ed. 84) (multiple defendants who each add negligible impurities to stream liable if aggre- gate impurities cause harm). But the rationale for impos- ing liability in these circumstances is that the defendants collectively invaded the plaintiff ’s protected interests. See By contrast, under the Muniauction rule, respond- ents’ interests in the ’713 patent have not been invaded. Cite as: 572 U. S. (2014) 9 Opinion of the Court Second, respondents seek to analogize to the federal aiding and abetting statute, 18 U.S. C. and they argue that two parties who divide all the necessary elements of a crime between them are both guilty under The analogy does not hold up. The aiding and abet- ting statute must be read “against its common-law back- ground,” (80), and at common law two or more defendants, each of whom committed an element of a crime, were liable as principals. See, e.g., 1 J. Bishop, Commentaries on the Criminal Law p. 392 (7th ed. 1882). While we have drawn on criminal law concepts in the past in interpreting see Global-Tech Appliances, Inc. v. SEB S. A., 563 U. S. (2011) (slip op., at 10–12), we think it un- likely that Congress had this particular doctrine in mind when it enacted the Patent Act of 52, given the doc- trine’s inconsistency with the Act’s cornerstone principle that patentees have a right only to the set of elements claimed in their patents and nothing further. Third, respondents contend that patent law principles established before the enactment of the Patent Act demon- strate that a defendant that performs some steps of a patent with the purpose of having its customers perform the remaining steps is liable for inducing infringement. But here, too, the nature of the rights created by the Pat- ent Act defeats the notion that Congress could have intended to permit inducement liability where there is no underlying direct infringement. According to respondents, their understanding of the pre-52 doctrine casts doubt on the Muniauction rule for direct infringement under on the ground that that rule has the indirect effect of preventing inducement liability where Congress would have wanted it. But the possibility that the Federal Circuit erred by too narrowly circumscribing the scope of is no reason for this Court to err a second time by misconstruing to impose liability for inducing 10 LIMELIGHT NETWORKS, INC. v. AKAMAI TECHNOLOGIES, INC. Opinion of the Court infringement where no infringement has occurred. Finally, respondents, like the Federal Circuit, criticize our interpretation of as permitting a would-be infringer to evade liability by dividing performance of a method patent’s steps with another whom the defendant neither directs nor controls. We acknowledge this concern. Any such anomaly, however, would result from the Fed- eral Circuit’s interpretation of in Muniauction. A desire to avoid Muniauction’s natural consequences does not justify fundamentally altering the rules of inducement liability that the text and structure of the Patent Act clearly require—an alteration that would result in its own serious and problematic consequences, namely, creating for purposes some free-floating concept of “in- fringement” both untethered to the statutory text and difficult for the lower courts to apply consistently. III Respondents ask us to review the merits of the Federal Circuit’s Muniauction rule for direct infringement under We decline to do so today. In the first place, the question presented is clearly focused on not We granted certiorari on the following question: “Whether the Federal Circuit erred in holding that a defendant may be held liable for inducing patent infringement under 35 U.S. C. even though no one has committed direct infringement under” Pet. for Cert. i. The question presupposes that Limelight has not committed direct infringement under And since the question on which we granted certiorari did not involve petitioner did not address that im- portant issue in its opening brief. Our decision on the question necessitates a remand to the Federal Circuit, and on remand, the Federal Circuit will have the opportunity to revisit the question if it so chooses. Cite as: 572 U. S. (2014) 11 Opinion of the Court IV The judgment below is reversed, and the case is re- manded for further proceedings consistent with this opinion. It is so ordered	2,116
per_curiam	per_curiam	true	Lance v. Coffman	2007-03-05	null	https://www.courtlistener.com/opinion/145753/lance-v-coffman/	https://www.courtlistener.com/api/rest/v3/clusters/145753/	2,007	2006-022	1	9	0	The Elections Clause of the United States Constitution provides that the "Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators." Art. I, § 4, cl. 1 (emphasis added). When Colorado legislators were unable to redraw congressional districts after the 2000 census to accommodate an additional Representative, a state court did it for them. See Beauprez v. Avalos, 42 P.3d 642 (Colo. 2002) (en banc). The legislature was able to pass a redistricting plan in 2003, which Colorado's Governor signed into law. See Colo.Rev.Stat. Ann. § 2-1-101. 1196 Colorado's attorney general, however, filed an original action in the Colorado Supreme Court to enjoin Colorado's secretary of state from implementing this new plan, noting that Article V, § 44, of the Colorado Constitution limits redistricting to once per census. The Colorado General Assembly intervened in the action to defend its plan. The Colorado Supreme Court granted the injunction, holding that "judicially-created districts are just as binding and permanent as districts created by the General Assembly," and that the court-drawn plan must remain in effect until the next decennial census. People ex rel. Salazar v. Davidson, 79 P.3d 1221, 1231 (2003) (en banc), cert. denied, 541 U.S. 1093, 124 S. Ct. 2228, 159 L. Ed. 2d 260 (2004). The court further held that this result did not offend the Elections Clause of the United States Constitution. 79 P.3d, at 1232. Immediately after Salazar was decided, four Colorado citizensnone of whom had participated in Salazarfiled the instant action in Federal District Court. They argued that Article V, § 44, of the Colorado Constitution, as interpreted by the Colorado Supreme Court, violates their rights under the Elections Clause. The District Court initially determined that it lacked jurisdiction to hear the suit in light of the Rooker-Feldman doctrine, but we vacated and remanded for further proceedings. Lance v. Dennis, 546 U.S. 459, 126 S. Ct. 1198, 163 L. Ed. 2d 1059 (2006) (per curiam). On remand, the District Court held that the citizen-plaintiffs had standing to bring their Elections Clause challenge. Lance v. Dennis, 444 F. Supp. 2d 1149, 1154-1155 (2006). The court went on, however, to hold that the suit was barred by issue preclusion because the plaintiffs "stand in privity with the Secretary of State and the General Assembly," who were on the losing side in the Salazar litigation. 444 F.Supp.2d, at 1161. The concurring judge concluded that appellants lacked standing to sue in the first place. Id., at 1162 (Porfilio, J., concurring in result). Plaintiffs appeal once again. Federal courts must determine that they have jurisdiction before proceeding to the merits. Steel Co. v. Citizens for Better Environment, 523 U.S. 83, 94-95, 118 S. Ct. 1003, 140 L. Ed. 2d 210 (1998).[] Article III of the Constitution limits the jurisdiction of federal courts to "Cases" and "Controversies." One component of the case-or-controversy requirement is standing, which requires a plaintiff to demonstrate the now-familiar elements of injury in fact, causation, and redressability. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992). "We have consistently held that a plaintiff raising only a generally available grievance about governmentclaiming 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 largedoes not state an Article III case or controversy." Id., at 573-574, 112 S. Ct. 2130. See also DaimlerChrysler Corp. v. Cuno, 547 U.S. ___, ___, 126 S. Ct. 1854, 1862, 164 L. Ed. 2d 589 (2006) (refusing to create an exception to the general prohibition on taxpayer standing for challenges to state tax or spending decisions, and observing 1197 that taxpayer standing has been rejected "because the alleged injury is not `concrete and particularized,' but instead a grievance the taxpayer `suffers in some indefinite way in common with people generally'" (citation omitted)). Our refusal to serve as a forum for generalized grievances has a lengthy pedigree. In Fairchild v. Hughes, 258 U.S. 126, 42 S. Ct. 274, 66 L. Ed. 499 (1922), for example, a citizen sued the Secretary of State and the Attorney General to challenge the procedures by which the Nineteenth Amendment was ratified. We dismissed the suit because it was "not a case within the meaning of ... Article III." Id., at 129, 42 S. Ct. 274. The plaintiff sought to assert "only the right, possessed by every citizen, to require that the Government be administered according to law and that the public moneys be not wasted." Ibid. "Obviously," we held, "this general right does not entitle a private citizen to institute [a suit] in the federal courts." Id., at 129-130, 42 S. Ct. 274. Similarly, in Ex parte Levitt, 302 U.S. 633, 58 S. Ct. 1, 82 L. Ed. 493 (1937) (per curiam), we dismissed a citizen suit claiming that Justice Black's appointment to this Court contravened the Constitution's Ineligibility Clause, Art. I, § 6, cl. 2. We found that the petitioner had no interest in the suit "other than that of a citizen and a member of the bar of this Court." 302 U.S., at 634, 58 S. Ct. 1. That was not enough. To have standing, we observed, a plaintiff must have more than "a general interest common to all members of the public." Ibid. See also Frothingham v. Mellon, decided with Massachusetts v. Mellon, 262 U.S. 447, 488, 43 S. Ct. 597, 67 L. Ed. 1078 (1923) (taxpayer standing cannot be predicated upon an injury the plaintiff "suffers in some indefinite way in common with people generally"). Cf. Tyler v. Judges of Court of Registration, 179 U.S. 405, 406, 21 S. Ct. 206, 45 L. Ed. 252 (1900) ("[E]ven in a proceeding which he prosecutes for the benefit of the public ... [the plaintiff] must generally aver an injury peculiar to himself, as distinguished from the great body of his fellow citizens"). A pair of more recent cases further illustrates the point. In United States v. Richardson, 418 U.S. 166, 94 S. Ct. 2940, 41 L. Ed. 2d 678 (1974), a federal taxpayer challenged the Government's failure to disclose certain CIA expenditures as a violation of the Constitution's Accounts Clause, which requires that "a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time." Art. I, § 9, cl. 7. Relying on Levitt, this Court dismissed the claim as a "generalized grievance" that is "plainly undifferentiated and `common to all members of the public.'" Richardson, 418 U.S., at 176-177, 94 S. Ct. 2940. See also id., at 191, 94 S. Ct. 2940 (Powell, J., concurring) ("The power recognized in Marbury v. Madison, 1 Cranch 137, 2 L. Ed. 60 (1803), is a potent one. Its prudent use seems to me incompatible with unlimited notions of taxpayer and citizen standing"). The same day, in Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 94 S. Ct. 2925, 41 L. Ed. 2d 706 (1974), we addressed standing to bring a challenge under the Constitution's Incompatibility Clause, which provides that "no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office." Art. I, § 6, cl. 2. Citizen-taxpayers brought a lawsuit contending that Members of Congress who were also members of the military Reserves violated the Incompatibility Clause. This Court dismissed for lack of standing. It "reaffirm[ed] Levitt in holding that standing to sue may not be predicated upon an interest of the kind alleged 1198 here which is held in common by all members of the public, because of the necessarily abstract nature of the injury all citizens share." 418 U.S., at 220, 94 S. Ct. 2925. Refusing to entertain generalized grievances ensures that "there is a real need to exercise the power of judicial review" in a particular case, and it helps guarantee that courts fashion remedies "no broader than required by the precise facts to which the court's ruling would be applied." Id., at 221-222, 94 S. Ct. 2925. In short, it ensures that courts exercise power that is judicial in nature. The instant case parallels Fairchild, Levitt, and their progeny. The plaintiffs here are four Colorado voters. Three days after the Colorado Supreme Court issued its decision in Salazar, they filed a complaint alleging that "Article V, § 44 of the Colorado Constitution, as interpreted in Salazar, violated [the Elections Clause] of the U.S. Constitution by depriving the state legislature of its responsibility to draw congressional districts." Lance v. Davidson, 379 F. Supp. 2d 1117, 1122 (2005). In light of the discussion above, the problem with this allegation should be obvious: The only injury plaintiffs allege is that the lawspecifically the Elections Clausehas not been followed. This injury is precisely the kind of undifferentiated, generalized grievance about the conduct of government that we have refused to countenance in the past. It is quite different from the sorts of injuries alleged by plaintiffs in voting rights cases where we have found standing. See, e.g., Baker v. Carr, 369 U.S. 186, 207-208, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962). Because plaintiffs assert no particularized stake in the litigation, we hold that they lack standing to bring their Elections Clause claim. Our two decisions construing the term "Legislature" in the Elections Clause do not contradict this holding. Each of these cases was filed by a relator on behalf of the State rather than private citizens acting on their own behalf, as is the case here. See State ex rel. Smiley v. Holm, 184 Minn. 647, 238 N.W. 792 (1931) (per curiam), rev'd sub nom. Smiley v. Holm, 285 U.S. 355, 52 S. Ct. 397, 76 L. Ed. 795 (1932); Ohio ex rel. Davis v. Hildebrant, 241 U.S. 565, 36 S. Ct. 708, 60 L. Ed. 1172 (1916). In neither case did we address whether a private citizen had alleged a "concrete and particularized" injury sufficient to satisfy the requirements of Article III. The judgment of the United States District Court for the District of Colorado is therefore vacated in part, and the case is remanded with instructions to dismiss the Elections Clause claim for lack of standing. We affirm the District Court's dismissal of the Petition Clause claim. It is so ordered.	The Elections Clause of the United States Constitution provides that the "Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators." Art. I, 4, cl. 1 (emphasis added). When Colorado legislators were unable to redraw congressional districts after the 2000 census to accommodate an additional Representative, a state court did it for them. See The legislature was able to pass a redistricting plan in which Colorado's Governor signed into law. See Colo.Rev.Stat. Ann. 2-1-101. 1196 Colorado's attorney general, however, filed an original action in the Colorado Supreme Court to enjoin Colorado's secretary of state from implementing this new plan, noting that Article V, 44, of the Colorado Constitution limits redistricting to once per census. The Colorado General Assembly intervened in the action to defend its plan. The Colorado Supreme Court granted the injunction, holding that "judicially-created districts are just as binding and permanent as districts created by the General Assembly," and that the court-drawn plan must remain in effect until the next decennial census. People ex rel. cert. denied, The court further held that this result did not offend the Elections Clause of the United States Immediately after Salazar was decided, four Colorado citizensnone of whom had participated in Salazarfiled the instant action in Federal District Court. They argued that Article V, 44, of the Colorado Constitution, as interpreted by the Colorado Supreme Court, violates their rights under the Elections Clause. The District Court initially determined that it lacked jurisdiction to hear the suit in light of the Rooker-Feldman doctrine, but we vacated and remanded for further proceedings. On remand, the District Court held that the citizen-plaintiffs had standing to bring their Elections Clause challenge. The court went on, however, to hold that the suit was barred by issue preclusion because the plaintiffs "stand in privity with the Secretary of State and the General Assembly," who were on the losing side in the Salazar The concurring judge concluded that appellants lacked standing to sue in the first place. Plaintiffs appeal once again. Federal courts must determine that they have jurisdiction before proceeding to the merits. Steel[] Article III of the Constitution limits the jurisdiction of federal courts to "Cases" and "Controversies." One component of the case-or-controversy requirement is standing, which requires a plaintiff to demonstrate the now-familiar elements of injury in fact, causation, and redressability. See "We have consistently held that a plaintiff raising only a generally available grievance about governmentclaiming 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 largedoes not state an Article III case or controversy." (refusing to create an exception to the general prohibition on taxpayer standing for challenges to state tax or spending decisions, and observing 1197 that taxpayer standing has been rejected "because the alleged injury is not `concrete and particularized,' but instead a grievance the taxpayer `suffers in some indefinite way in common with people generally'" (citation omitted)). Our refusal to serve as a forum for generalized grievances has a lengthy pedigree. In for example, a citizen sued the Secretary of State and the Attorney General to challenge the procedures by which the Nineteenth Amendment was ratified. We dismissed the suit because it was "not a case within the meaning of Article III." The plaintiff sought to assert "only the right, possessed by every citizen, to require that the Government be administered according to law and that the public moneys be not wasted." "Obviously," we held, "this general right does not entitle a private citizen to institute [a suit] in the federal courts." -130, Similarly, in Ex parte Levitt, we dismissed a citizen suit claiming that Justice Black's appointment to this Court contravened the Constitution's Ineligibility Clause, Art. I, 6, cl. 2. We found that the petitioner had no interest in the suit "other than that of a citizen and a member of the bar of this Court." That was not enough. To have standing, we observed, a plaintiff must have more than "a general interest common to all members of the public." See also Frothingham v. Mellon, decided with Cf. A pair of more recent cases further illustrates the point. In United a federal taxpayer challenged the Government's failure to disclose certain CIA expenditures as a violation of the Constitution's Accounts Clause, which requires that "a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time." Art. I, 9, cl. 7. Relying on Levitt, this Court dismissed the claim as a "generalized grievance" that is "plainly undifferentiated and `common to all members of the public.'" -177, See also (Powell, J., concurring) is a potent one. Its prudent use seems to me incompatible with unlimited notions of taxpayer and citizen standing"). The same day, in we addressed standing to bring a challenge under the Constitution's Incompatibility Clause, which provides that "no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office." Art. I, 6, cl. 2. Citizen-taxpayers brought a lawsuit contending that Members of Congress who were also members of the military Reserves violated the Incompatibility Clause. This Court dismissed for lack of standing. It "reaffirm[ed] Levitt in holding that standing to sue may not be predicated upon an interest of the kind alleged 1198 here which is held in common by all members of the public, because of the necessarily abstract nature of the injury all citizens share." Refusing to entertain generalized grievances ensures that "there is a real need to exercise the power of judicial review" in a particular case, and it helps guarantee that courts fashion remedies "no broader than required by the precise facts to which the court's ruling would be applied." In short, it ensures that courts exercise power that is judicial in nature. The instant case parallels Fairchild, Levitt, and their progeny. The plaintiffs here are four Colorado voters. Three days after the Colorado Supreme Court issued its decision in Salazar, they filed a complaint alleging that "Article V, 44 of the Colorado Constitution, as interpreted in Salazar, violated [the Elections Clause] of the U.S. Constitution by depriving the state legislature of its responsibility to draw congressional districts." In light of the discussion above, the problem with this allegation should be obvious: The only injury plaintiffs allege is that the lawspecifically the Elections Clausehas not been followed. This injury is precisely the kind of undifferentiated, generalized grievance about the conduct of government that we have refused to countenance in the past. It is quite different from the sorts of injuries alleged by plaintiffs in voting rights cases where we have found standing. See, e.g., Because plaintiffs assert no particularized stake in the litigation, we hold that they lack standing to bring their Elections Clause claim. Our two decisions construing the term "Legislature" in the Elections Clause do not contradict this holding. Each of these cases was filed by a relator on behalf of the State rather than private citizens acting on their own behalf, as is the case here. See State ex rel. rev'd sub nom. ; Ohio ex rel. In neither case did we address whether a private citizen had alleged a "concrete and particularized" injury sufficient to satisfy the requirements of Article III. The judgment of the United States District Court for the District of Colorado is therefore vacated in part, and the case is remanded with instructions to dismiss the Elections Clause claim for lack of standing. We affirm the District Court's dismissal of the Petition Clause claim. It is so ordered.	2,120
Justice Rehnquist	majority	false	Janette Price, Warden v. Duyonn Andre Vincent	2003-05-19	538 U.S. 1	https://www.courtlistener.com/opinion/127895/janette-price-warden-v-duyonn-andre-vincent/	https://www.courtlistener.com/api/rest/v3/clusters/127895/	2,003	null	null	null	null	1 The United States Court of Appeals for the Sixth Circuit granted habeas relief to respondent Duyonn Andre Vincent after concluding that the Double Jeopardy Clause of the Fifth Amendment, as applied to the States through the Fourteenth Amendment, barred his conviction for firstdegree murder. Vincent v. Jones, 292 F.3d 506 (2002). Because this decision exceeds the limits imposed on federal habeas review by 28 U.S. C. §2254(d), we granted the petition for certiorari, 537 U.S. 1099 (2002), and now reverse. 2 * In an altercation between two groups of youths in front of a high school in Flint, Michigan, Markeis Jones was shot and killed. Respondent was arrested in connection with the shooting and was charged with open murder. At the close of the prosecution's case in chief and outside the hearing of the jury, defense counsel moved for a directed verdict of acquittal as to first-degree murder, arguing that there was insufficient evidence of premeditation and deliberation. The trial judge stated: 3 "`[M]y impression at this time is that there's not been shown premeditation or planning in the, in the alleged slaying. That what we have at the very best is Second Degree Murder.... I think that Second Degree Murder is an appropriate charge as to the defendants. Okay.'" 292 F.3d, at 508. 4 Before court adjourned, the prosecutor asked to make a brief statement regarding first-degree murder the following morning. Ibid. The trial judge agreed to hear it. 5 When the prosecution made the statement, however, defense counsel objected. The defense argued that the court had granted its motion for a directed verdict as to first-degree murder the previous day, and that further prosecution on that charge would violate the Double Jeopardy Clause. Ibid. The judge responded, "`Oh, I granted a motion but I have not directed a verdict.'" Id., at 509. He noted that the jury had not been informed of his statements, and said that he would reserve a ruling on the matter. Subsequently, he decided to permit the charge of first-degree murder to be submitted to the jury. Ibid. 6 The jury convicted respondent of first-degree murder, and respondent appealed. Ibid. The Michigan Court of Appeals reversed, concluding that the trial judge had directed a verdict on the charge and that the Double Jeopardy Clause prevented respondent's prosecution for firstdegree murder. Michigan v. Vincent, 215 Mich. App. 458, 546 N.W.2d 662 (1996). The Michigan Supreme Court reversed. It noted that "a judge's characterization of a ruling and the form of the ruling may not be controlling" for purposes of determining whether a ruling terminated jeopardy. People v. Vincent, 455 Mich. 110, 119, 565 N.W.2d 629, 632 (1997) (citing United States v. Martin Linen Supply Co., 430 U.S. 564, 571, n. 9 (1977)). The State Supreme Court then reviewed the context and substance of the trial judge's comments, and concluded that the comments were not sufficiently final to constitute a judgment of acquittal terminating jeopardy. After the Michigan Supreme Court's decision, respondent discovered that the Clerk had made the following entry on the docket sheet: " `Motions by all atts for directed verdict. Court amended c[oun]t: 1 open murder to 2nd degree murder.'" 292 F.3d, at 512; see also Tr. of Oral Arg. 7. Respondent moved the State Supreme Court to reconsider its judgment in light of this statement. The motion was denied without opinion. Judgt. order reported at 456 Mich. 1201, 568 N.W.2d 670 (1997). 7 Respondent sought a writ of habeas corpus from the United States District Court for the Eastern District of Michigan. That court determined that respondent's prosecution for first-degree murder violated the Double Jeopardy Clause, and it granted his petition. App. to Pet. for Cert. 78a. The United States Court of Appeals for the Sixth Circuit affirmed, 292 F.3d 506 (2002), and this petition ensued. II 8 A habeas petitioner whose claim was adjudicated on the merits in state court is not entitled to relief in federal court unless he meets the requirements of 28 U.S. C. §2254(d). The double jeopardy claim in respondent's habeas petition arises out of the same set of facts upon which he based his direct appeal, and the State Supreme Court's holding that no double jeopardy violation occurred therefore constituted an adjudication of this claim on the merits. Thus, under §2254(d), respondent is not entitled to relief unless he can demonstrate that the state court's adjudication of his claim: 9 "(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; or 10 "(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 11 Although the Court of Appeals recited this standard, 292 F.3d, at 510, it proceeded to evaluate respondent's claim de novo rather than through the lens of §2254(d), apparently because it "agree[d] with the district court that whether the state trial judge acquitted [respondent] of first-degree murder is a question of law and not one of fact." Id., at 511. The Court of Appeals did not consider whether the Michigan Supreme Court's decision was "contrary to" or an "unreasonable application of" our clearly established precedents, or whether it was "based on an unreasonable determination of the facts." Instead, the Court of Appeals declared: 12 "`[W]e are not bound by the holding of the Michigan Supreme Court that the trial judge's statements did not constitute a directed verdict under Michigan law. Instead, we must examine the state trial judge's comments to determine whether he made a ruling which resolved the factual elements of the first-degree murder charge.'" Ibid. 13 The Court of Appeals then concluded that, in its judgment, the state trial court's actions "constituted a grant of an acquittal on the first-degree murder charge such that jeopardy attached," id., at 512, and affirmed. 14 This was error. As noted above, under §2254(d) it must be shown that the Michigan Supreme Court's decision was either contrary to, or an unreasonable application of, this Court's clearly established precedents, or was based upon an unreasonable determination of the facts. The parties do not dispute the underlying facts, and respondent is therefore entitled to habeas relief only if he can meet one of the two bases for relief provided in §2254(d)(1). We will address these bases in turn. 15 First, we have explained that a decision by a state court is "contrary to" our clearly established law if it "applies a rule that contradicts the governing law set forth in our cases" or if it "confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent." Williams v. Taylor, 529 U.S. 362, 405-406 (2000). See also Early v. Packer, 537 U.S. 3, 7-8 (2002) (per curiam). Here, the Michigan Supreme Court identified the applicable Supreme Court precedents, United States v. Martin Linen Supply Co., 430 U.S. 564 (1977), and Smalis v. Pennsylvania, 476 U.S. 140 (1986), and "reaffirm[ed] the principles articulated" in those decisions. People v. Vincent, 455 Mich., at 121, 565 N.W.2d, at 633. Moreover, the Michigan Supreme Court properly followed Martin Linen by recognizing that the trial judge's characterization of his own ruling is not controlling for purposes of double jeopardy, and by inquiring into "`whether the ruling of the [trial] judge, whatever its label, actually represents a resolution, correct or not, of some or all of the factual elements of the offense charged.'" 455 Mich., at 119, 565 N. W. 2d, at 633 (citing Martin Linen, supra, at 571). Nowhere did the Michigan Supreme Court apply a legal standard contrary to those set forth in our cases. Nor did that court confront a set of facts materially indistinguishable from those presented in any of this Court's clearly established precedents. In Smalis and Martin Linen, unlike in the present case, the trial courts not only rendered statements of clarity and finality but also entered formal orders from which appeals were taken. 476 U.S., at 142; 430 U. S., at 566. 16 Second, respondent can satisfy §2254(d) if he can demonstrate that the Michigan Supreme Court's decision involved an "unreasonable application" of clearly established law. As we have explained, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the state-court decision applied [a Supreme Court case] incorrectly. See Bell v. Cone, 535 U.S. 685, 699 (2002); Williams, supra, at 411. Rather, it is the habeas applicant's burden to show that the state court applied [that case] to the facts of his case in an objectively unreasonable manner." Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002) (per curiam). 17 Here, having recognized that, under Martin Linen, the trial judge's characterization of his own ruling was not controlling for purposes of double jeopardy, the court went on to examine the substance of the judge's actions, to determine whether "further proceedings would violate the defendant's double jeopardy rights." People v. Vincent, 455 Mich., at 119, 565 N.W.2d, at 633. In doing so, the court noted the goal of the Double Jeopardy Clause to prevent against a second prosecution for the same offense after acquittal. Id., at 120, n. 5, 565 N.W.2d, at 633, n. 5; see also Martin Linen, supra, at 569 (noting controlling constitutional principle motivating Double Jeopardy Clause is prohibition against multiple trials and corresponding prevention of oppression by the Government); Lockhart v. Nelson, 488 U.S. 33, 42 (1988). The Michigan Supreme Court also considered Smalis, in which this Court stated: 18 "the Double Jeopardy Clause bars a postacquittal appeal by the prosecution not only when it might result in a second trial, but also if reversal would translate into `further proceedings of some sort, devoted to the resolution of factual issues going to the elements of the offense charged.'" 476 U.S., at 145-146 (quoting Martin Linen, supra, at 570). 19 Applying Martin Linen and Smalis, the State Supreme Court concluded that the judge's comments simply were not sufficiently final as to terminate jeopardy. People v. Vincent, 455 Mich., at 120, 565 N.W.2d, at 633 ("[F]urther proceedings were not barred by the Double Jeopardy Clause"); id., at 120, n. 5, 565 N.W.2d, at 633, n. 5 ("[T]he principles embodied within [double jeopardy] protections were not violated"); id., at 127, 565 N.W.2d, at 636 (Because "the judge's comments . . . lacked the requisite degree of clarity and specificity," "the continuation of the trial . . . did not prejudice or violate the defendant's constitutional rights"). 20 In reaching this conclusion, in addition to reviewing the context and substance of the trial judge's comments at length, the Michigan Supreme Court observed that "there was no formal judgment or order entered on the record." Ibid.1 The Michigan Supreme Court noted that formal motions or rulings were not required to demonstrate finality as a matter of Michigan law, but cautioned that "the judgment must bear sufficient indicia of finality to survive an appeal." Id., at 126, n. 9, 565 N.W.2d, at 636, n. 9. The court listed factors that might be considered in evaluating finality as including "a clear statement in the record or a signed order," "an instruction to the jury that a charge or element of the charge has been dismissed by the judge," or "a docket entry." Ibid. "[E]ach case," the court said, "will turn on its own particular circumstances." Ibid. Even after the docket entry was brought to its attention, the State Supreme Court adhered to its original decision that, in this case, the trial judge's comments were not sufficiently final to terminate jeopardy. This was not an objectively unreasonable application of clearly established law as defined by this Court. Indeed, numerous other courts have refused to find double jeopardy violations under similar circumstances.2 Even if we agreed with the Court of Appeals that the Double Jeopardy Clause should be read to prevent continued prosecution of a defendant under these circumstances, it was at least reasonable for the state court to conclude otherwise. 21 Because respondent did not meet the statutory requirements for habeas relief, the judgment of the Court of Appeals is reversed. 22 It is so ordered. Notes: 1 The Michigan Supreme Court noted that the comments at issue were never discussed in front of the jury,People v. Vincent, 455 Mich., at 114-115, n. 1, 565 N.W.2d, at 631, n. 1, and that the jury was never discharged, id., at 121, n. 6, 565 N.W.2d, at 633, n. 6. Moreover, the State Supreme Court noted, no trial proceedings took place with respondent laboring under the mistaken impression that he was not facing the possibility of conviction for first-degree murder. Id., at 114-115, n. 1, 565 N.W.2d, at 631, n. 1. 2 InUnited States v. LoRusso, 695 F.2d 45, 54 (1982), for example, the Second Circuit held that double jeopardy did not bar continued prosecution on a charge when the judge withdrew an oral grant of a motion to dismiss a count "[w]here no judgment has been entered . . . and there has been no dismissal of the jury." In United States v. Byrne, 203 F.3d 671 (2000), the Ninth Circuit found no double jeopardy violation where a trial judge orally granted a motion for acquittal, then agreed to consider an additional transcript. Id., at 674. ("[T]here was no announcement of the court's decision to the jury, and the trial did not resume until" after the court had denied the defendant's motion). See also United States v. Baggett, 251 F.3d 1087, 1095 (CA6 2001) ("Byrne and LoRusso stand for the proposition that an oral grant of a Rule 29 motion outside of the jury's presence does not terminate jeopardy, inasmuch as a court is free to change its mind prior to the entry of judgment"); State v. Iovino, 524 A.2d 556, 559 (R. I. 1987) (distinguishing United States v. Martin Linen Supply Co., 430 U.S. 564 (1977), on the grounds that in the case before it, "the jury remained impaneled to adjudicate lesser included charges, and that defendant was not faced with any threat of reprosecution beyond the jury already assembled to hear his case"); State v. Sperry, 149 Ore. App. 690, 696, 945 P.2d 546, 550 (1997) ("[U]nder the circumstances presented here, the trial court could reconsider [its oral grant of a motion for a judgment of acquittal] and withdraw its ruling without violating" the Double Jeopardy Clause)	The United States Court of Appeals for the Sixth Circuit granted habeas relief to respondent Duyonn Andre after concluding that the Double Jeopardy Clause of the Fifth Amendment, as applied to the States through the Fourteenth Amendment, barred his conviction for firstdegree murder. Because this decision exceeds the limits imposed on federal habeas review by 28 U.S. C. we granted the petition for certiorari, and now reverse. 2 * In an altercation between two groups of youths in front of a high school in Flint, Michigan, Markeis Jones was shot and killed. Respondent was arrested in connection with the shooting and was charged with open murder. At the close of the prosecution's case in chief and outside the hearing of the jury, defense counsel moved for a directed verdict of acquittal as to first-degree murder, arguing that there was insufficient evidence of premeditation and deliberation. The trial judge stated: 3 "`[M]y impression at this time is that there's not been shown premeditation or planning in the, in the alleged slaying. That what we have at the very best is Second Degree Murder. I think that Second Degree Murder is an appropriate charge as to the defendants. Okay.'" 4 Before court adjourned, the prosecutor asked to make a brief statement regarding first-degree murder the following morning. The trial judge agreed to hear it. When the prosecution made the statement, however, defense counsel objected. The defense argued that the court had granted its motion for a directed verdict as to first-degree murder the previous day, and that further prosecution on that charge would violate the Double Jeopardy Clause. The judge responded, "`Oh, I granted a motion but I have not directed a verdict.'" He noted that the jury had not been informed of his statements, and said that he would reserve a ruling on the matter. Subsequently, he decided to permit the charge of first-degree murder to be submitted to the jury. The jury convicted respondent of first-degree murder, and respondent appealed. The Michigan Court of Appeals reversed, concluding that the trial judge had directed a verdict on the charge and that the Double Jeopardy Clause prevented respondent's prosecution for firstdegree murder. The Michigan Supreme Court reversed. It noted that "a judge's characterization of a ruling and the form of the ruling may not be controlling" for purposes of determining whether a ruling terminated jeopardy. The State Supreme Court then reviewed the context and substance of the trial judge's comments, and concluded that the comments were not sufficiently final to constitute a judgment of acquittal terminating jeopardy. After the Michigan Supreme Court's decision, respondent discovered that the Clerk had made the following entry on the docket sheet: " `Motions by all atts for directed verdict. Court amended c[oun]t: open murder to 2nd degree murder.'" ; see also Tr. of Oral Arg. 7. Respondent moved the State Supreme Court to reconsider its judgment in light of this statement. The motion was denied without opinion. Judgt. order reported at 7 Respondent sought a writ of habeas corpus from the United States District Court for the Eastern District of Michigan. That court determined that respondent's prosecution for first-degree murder violated the Double Jeopardy Clause, and it granted his petition. App. to Pet. for Cert. 78a. The United States Court of Appeals for the Sixth Circuit affirmed, and this petition ensued. II 8 A habeas petitioner whose claim was adjudicated on the merits in state court is not entitled to relief in federal court unless he meets the requirements of 28 U.S. C. The double jeopardy claim in respondent's habeas petition arises out of the same set of facts upon which he based his direct appeal, and the State Supreme Court's holding that no double jeopardy violation occurred therefore constituted an adjudication of this claim on the merits. Thus, under respondent is not entitled to relief unless he can demonstrate that the state court's adjudication of his 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; or 0 "(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." Although the Court of Appeals recited this it proceeded to evaluate respondent's claim de novo rather than through the lens of apparently because it "agree[d] with the district court that whether the state trial judge acquitted [respondent] of first-degree murder is a question of law and not one of fact." The Court of Appeals did not consider whether the Michigan Supreme Court's decision was "contrary to" or an "unreasonable application of" our clearly established precedents, or whether it was "based on an unreasonable determination of the facts." Instead, the Court of Appeals declared: 2 "`[W]e are not bound by the holding of the Michigan Supreme Court that the trial judge's statements did not constitute a directed verdict under Michigan law. Instead, we must examine the state trial judge's comments to determine whether he made a ruling which resolved the factual elements of the first-degree murder charge.'" 3 The Court of Appeals then concluded that, in its judgment, the state trial court's actions "constituted a grant of an acquittal on the first-degree murder charge such that jeopardy attached," and affirmed. 4 This was error. As noted above, under it must be shown that the Michigan Supreme Court's decision was either contrary to, or an unreasonable application of, this Court's clearly established precedents, or was based upon an unreasonable determination of the facts. The parties do not dispute the underlying facts, and respondent is therefore entitled to habeas relief only if he can meet one of the two bases for relief provided in (). We will address these bases in turn. First, we have explained that a decision by a state court is "contrary to" our clearly established law if it "applies a rule that contradicts the governing law set forth in our cases" or if it "confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent." See also Here, the Michigan Supreme Court identified the applicable Supreme Court precedents, United and and "reaffirm[ed] the principles articulated" in those decisions. Moreover, the Michigan Supreme Court properly followed Martin by recognizing that the trial judge's characterization of his own ruling is not controlling for purposes of double jeopardy, and by inquiring into "`whether the ruling of the [trial] judge, whatever its label, actually represents a resolution, correct or not, of some or all of the factual elements of the offense charged.'" 4 Mich., at N. W. 2d, at 33 (citing Martin ). Nowhere did the Michigan Supreme Court apply a legal contrary to those set forth in our cases. Nor did that court confront a set of facts materially indistinguishable from those presented in any of this Court's clearly established precedents. In Smalis and Martin unlike in the present case, the trial courts not only rendered statements of clarity and finality but also entered formal orders from which appeals were ; Second, respondent can satisfy if he can demonstrate that the Michigan Supreme Court's decision involved an "unreasonable application" of clearly established law. As we have explained, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the state-court decision applied [a Supreme Court case] incorrectly. See ; Rather, it is the habeas applicant's burden to show that the state court applied [that case] to the facts of his case in an objectively unreasonable manner." 7 Here, having recognized that, under Martin the trial judge's characterization of his own ruling was not controlling for purposes of double jeopardy, the court went on to examine the substance of the judge's actions, to determine whether "further proceedings would violate the defendant's double jeopardy rights." 4 Mich., at In doing so, the court noted the goal of the Double Jeopardy Clause to prevent against a second prosecution for the same offense after acquittal. n. ; see also Martin at ; The Michigan Supreme Court also considered Smalis, in which this Court stated: 8 "the Double Jeopardy Clause bars a postacquittal appeal by the prosecution not only when it might result in a second trial, but also if reversal would translate into `further proceedings of some sort, devoted to the resolution of factual issues going to the elements of the offense charged.'" 47 U.S., at 4-4 (quoting Martin at 70). Applying Martin and Smalis, the State Supreme Court concluded that the judge's comments simply were not sufficiently final as to terminate jeopardy. 4 Mich., at 20, ; n. ; N.W.2d, at 3 20 In reaching this conclusion, in addition to reviewing the context and substance of the trial judge's comments at length, the Michigan Supreme Court observed that "there was no formal judgment or order entered on the record." The Michigan Supreme Court noted that formal motions or rulings were not required to demonstrate finality as a matter of Michigan law, but cautioned that "the judgment must bear sufficient indicia of finality to survive an appeal." N.W.2d, at 3, n. The court listed factors that might be considered in evaluating finality as including "a clear statement in the record or a signed order," "an instruction to the jury that a charge or element of the charge has been dismissed by the judge," or "a docket entry." "[E]ach case," the court said, "will turn on its own particular circumstances." Even after the docket entry was brought to its attention, the State Supreme Court adhered to its original decision that, in this case, the trial judge's comments were not sufficiently final to terminate jeopardy. This was not an objectively unreasonable application of clearly established law as defined by this Court. Indeed, numerous other courts have refused to find double jeopardy violations under similar circumstances.2 Even if we agreed with the Court of Appeals that the Double Jeopardy Clause should be read to prevent continued prosecution of a defendant under these circumstances, it was at least reasonable for the state court to conclude otherwise. 2 Because respondent did not meet the statutory requirements for habeas relief, the judgment of the Court of Appeals is reversed. 22 It is so ordered. Notes: The Michigan Supreme Court noted that the comments at issue were never discussed in front of the jury, 4 Mich., at 4-, n. N.W.2d, at 3, n. and that the jury was never discharged, at 2, n. n. Moreover, the State Supreme Court noted, no trial proceedings took place with respondent laboring under the mistaken impression that he was not facing the possibility of conviction for first-degree murder. at 4-, n. N.W.2d, at 3, n. 2 InUnited F.2d 4, 4 (82), for example, the Second Circuit held that double jeopardy did not bar continued prosecution on a charge when the judge withdrew an oral grant of a motion to dismiss a count "[w]here no judgment has been entered and there has been no dismissal of the jury." In United 203 F.3d 7 the Ninth Circuit found no double jeopardy violation where a trial judge orally granted a motion for acquittal, then agreed to consider an additional transcript. at 74. ("[T]here was no announcement of the court's decision to the jury, and the trial did not resume until" after the court had denied the defendant's motion). See also United 2 F.3d 087, 0 (CA 200) ("Byrne and LoRusso stand for the proposition that an oral grant of a Rule 2 motion outside of the jury's presence does not terminate jeopardy, inasmuch as a court is free to change its mind prior to the entry of judgment"); 24 A.2d (R. I. 87) on the grounds that in the case before it, "the jury remained impaneled to adjudicate lesser included charges, and that defendant was not faced with any threat of reprosecution beyond the jury already assembled to hear his case"); 4 Ore. App. 0, 4 P.2d 4, 0	2,121
Justice Thomas	concurring	false	Agency for Int'l Development v. Alliance for Open Society	2020-06-29	null	https://www.courtlistener.com/opinion/4764453/agency-for-intl-development-v-alliance-for-open-society/	https://www.courtlistener.com/api/rest/v3/clusters/4764453/	2,020	null	null	null	null	I agree with the Court that the Policy Requirement does not violate the First Amendment as applied to respondents’ foreign affiliates, and I agree that nothing about this Court’s decision in Agency for Int’l Development v. Alliance for Open Society Int’l, Inc., 570 U.S. 205 (2013) (AOSI I), suggests otherwise. See ante, at 8–9. I write separately to note my continued disagreement with AOSI I and to ex- plain that the Policy Requirement does not violate the First Amendment for a far simpler reason: It does not compel an- yone to say anything. In AOSI I, the Court erred by holding that the Policy Re- quirement violated respondents’ First Amendment rights by conditioning their receipt of Leadership Act* funds on the affirmation of certain program objectives. “The First Amendment does not mandate a viewpoint-neutral govern- ment.” AOSI I, 570 U.S., at 221 (Scalia, J., joined by THOMAS, J., dissenting). Thus, the Government may re- quire those who seek to carry out federally funded programs —————— * As the Court explains, the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003 (Leadership Act), 22 U.S. C. §7601 et seq., “allocate[s] billions of dollars to American and for- eign nongovernmental organizations that combat HIV/AIDS abroad.” Ante, at 1. 2 AGENCY FOR INT’L DEVELOPMENT v. ALLIANCE FOR OPEN SOCIETY INT’L, INC. THOMAS, J., concurring to support the Government’s objectives with regard to those programs. Ibid. After all, the Constitution itself “impos[es] affirmative ideological commitments prerequisite to assist- ing in the government’s work.” Id., at 227. It excludes view- points such as communism and anarchism, stating that those engaged in government work must swear an oath to support our Constitution’s republican form of government. See Art. VI, cl. 3. Moreover, the mere conditioning of funds on “ ‘the affir- mation of a belief’ ” tied to the purpose of a government pro- gram involves “no compulsion at all.” AOSI I, 570 U.S., at 226 (Scalia, J., joined by THOMAS, J., dissenting). Such a condition is “the reasonable price of admission to a limited government-spending program that each organization re- mains free to accept or reject.” Ibid. Just as respondents are not compelled to associate with their foreign affiliates, see ante, at 6–8, they are not compelled to participate in the Leadership Act program. The Policy Requirement does not violate the First Amendment, regardless of whether it is applied to respond- ents, respondents’ legally distinct foreign affiliates, or any other organization, foreign or domestic. Because the Court properly rejects respondents’ attempt to extend our errone- ous precedent, I join its opinion in full. Cite as: 591 U. S. ____ (2020) 1 BREYER, J., dissenting SUPREME COURT OF THE UNITED STATES _________________ No. 19–177 _________________ AGENCY FOR INTERNATIONAL DEVELOPMENT, ET AL., PETITIONERS v. ALLIANCE FOR OPEN SOCIETY INTERNATIONAL, INC., ET AL.	agree with the Court that the Policy Requirement does not violate the First Amendment as applied to respondents’ foreign affiliates, and agree that nothing about this Court’s decision in Agency for nt’l suggests otherwise. See ante, at 8–9. write separately to note my continued disagreement with AOS and to ex- plain that the Policy Requirement does not violate the First Amendment for a far simpler reason: t does not compel an- yone to say anything. n AOS the Court erred by holding that the Policy Re- quirement violated respondents’ First Amendment rights by conditioning their receipt of Leadership Act* funds on the affirmation of certain program objectives. “The First Amendment does not mandate a viewpoint-neutral govern- ment.” AOS (Scalia, J., joined by THOMAS, J., dissenting). Thus, the Government may re- quire those who seek to carry out federally funded programs —————— * As the Court explains, the United States Leadership Against HV/ADS, Tuberculosis, and Malaria Act of 2003 (Leadership Act), 22 U.S. C. et seq., “allocate[s] billions of dollars to American and for- eign nongovernmental organizations that combat HV/ADS abroad.” Ante, at 1. 2 AGENCY FOR NT’L DEVELOPMENT v. ALLANCE FOR OPEN SOCETY NT’L, NC. THOMAS, J., concurring to support the Government’s objectives with regard to those programs. bid. After all, the Constitution itself “impos[es] affirmative ideological commitments prerequisite to assist- ing in the government’s work.” d., t excludes view- points such as communism and anarchism, stating that those engaged in government work must swear an oath to support our Constitution’s republican form of government. See Art. V, cl. 3. Moreover, the mere conditioning of funds on “ ‘the affir- mation of a belief’ ” tied to the purpose of a government pro- gram involves “no compulsion at all.” AOS 570 U.S., at 226 (Scalia, J., joined by THOMAS, J., dissenting). Such a condition is “the reasonable price of admission to a limited government-spending program that each organization re- mains free to accept or reject.” bid. Just as respondents are not compelled to associate with their foreign affiliates, see ante, at 6–8, they are not compelled to participate in the Leadership Act program. The Policy Requirement does not violate the First Amendment, regardless of whether it is applied to respond- ents, respondents’ legally distinct foreign affiliates, or any other organization, foreign or domestic. Because the Court properly rejects respondents’ attempt to extend our errone- ous precedent, join its opinion in full. Cite as: 591 U. S. (2020) 1 BREYER, J., dissenting SUPREME COURT OF THE UNTED STATES No. 19–177 AGENCY FOR NTERNATONAL DEVELOPMENT, ET AL., PETTONERS v. ALLANCE FOR OPEN SOCETY NTERNATONAL, NC., ET AL.	2,124
Justice Breyer	dissenting	false	Agency for Int'l Development v. Alliance for Open Society	2020-06-29	null	https://www.courtlistener.com/opinion/4764453/agency-for-intl-development-v-alliance-for-open-society/	https://www.courtlistener.com/api/rest/v3/clusters/4764453/	2,020	null	null	null	null	The Court, in my view, asks the wrong question and gives the wrong answer. This case is not about the First Amend- ment rights of foreign organizations. It is about—and has always been about—the First Amendment rights of Ameri- can organizations. The last time this case came before us, those American organizations vindicated their constitutional right to speak freely, both at home and abroad. In Agency for Int’l Devel- opment v. Alliance for Open Society Int’l, Inc., 570 U.S. 205 (2013) (AOSI I ), we held that the First Amendment forbids the Government from distorting their speech by requiring, as a condition of receiving federal funds, that they “pledge allegiance” to a state-sponsored message. Id., at 220. This time, the question is whether the American organi- zations enjoy that same constitutional protection against government-compelled distortion when they speak through clearly identified affiliates that have been incorporated overseas. The answer to that question, as I see it, is yes. I dissent from the Court’s contrary conclusion. 2 AGENCY FOR INT’L DEVELOPMENT v. ALLIANCE FOR OPEN SOCIETY INT’L, INC. BREYER, J., dissenting I To understand the issue now before us, one must appre- ciate how it got here. Given this litigation’s lengthy history, that requires a rather detailed look at why this dispute first arose, what we decided in our prior decision (namely, AOSI I ), and where the case proceeded from there. A As we explained in AOSI I, the plaintiffs in this action (respondents in this Court then and now) “are a group of domestic organizations engaged in combating HIV/AIDS overseas.” Id., at 210. Their lifesaving work spans multiple continents. Id., at 211. For example, respondents run “pro- grams aimed at limiting injection drug use in Uzbekistan, Tajikistan, and Kyrgyzstan, preventing mother-to-child HIV transmission in Kenya, and promoting safer sex prac- tices in India.” Ibid. Respondents also counsel high-risk populations such as sex workers, encourage foreign govern- ments to adopt beneficial public policies, and share infor- mation about best practices in publications and at confer- ences. See ibid.; App. 171, 217, 222, 419. To support these international efforts, respondents must make fundraising appeals to donors worldwide. See, e.g., id., at 366, 384, 431– 433, 457. But crucially for both their mission and for this case, respondents also “receive billions [of dollars] annually in financial assistance from the United States.” AOSI I, 570 U.S., at 210. One of respondents’ primary sources of federal funding is the United States Leadership Against HIV/AIDS, Tubercu- losis, and Malaria Act of 2003. 117 Stat. 711, as amended, 22 U.S. C. §7601 et seq. (Leadership Act). Congress en- acted the Leadership Act with the goal of creating “a ‘com- prehensive, integrated’ strategy to combat HIV/AIDS around the world.” AOSI I, 570 U.S., at 209 (quoting §7611(a)). To that end, the statute allocates considerable federal dollars to nongovernmental organizations fighting Cite as: 591 U. S. ____ (2020) 3 BREYER, J., dissenting HIV/AIDS abroad. Id., at 209–211. But Leadership Act funding comes with strings attached. Two, in particular. First, no Leadership Act funds “ ‘may be used to promote or advocate the legalization or practice of prostitution or sex trafficking.’ ” Id., at 210 (quoting §7631(e)). Second, with some exceptions not relevant here, any recipient of Leadership Act funds must have “ ‘a policy explicitly opposing prostitution and sex trafficking.’ ” Id., at 210 (quoting §7631(f )). The first condition limiting how Leadership Act funds may be spent has never been chal- lenged in this litigation. Id., at 210. What has driven this decades-long dispute is the second condition, the “Policy Re- quirement” that requires recipients to espouse a govern- ment message. Ibid. Concerned that “adopting a policy explicitly opposing prostitution” could “alienate certain host governments” and “mak[e] it more difficult to work with prostitutes in the fight against HIV/AIDS,” respondents sued. Id., at 211. They asserted that the Policy Requirement put an uncon- stitutional condition on the receipt of federal funds and was thus unenforceable. Id., at 212. Accordingly, as the case came to us in AOSI I, the question was whether this fund- ing condition violated respondents’ First Amendment rights. Id., at 211. B The answer, we held in AOSI I, was yes. Our reasoning then demands close inspection now. To begin, we observed in AOSI I that “the Policy Require- ment would plainly violate the First Amendment” if it op- erated “as a direct regulation of speech.” Id., at 213. Com- manding someone to speak a government message contravenes the “basic First Amendment principle that ‘freedom of speech prohibits the government from telling people what they must say.’ ” Ibid. (quoting Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 4 AGENCY FOR INT’L DEVELOPMENT v. ALLIANCE FOR OPEN SOCIETY INT’L, INC. BREYER, J., dissenting U. S. 47, 61 (2006) (FAIR)); see also, e.g., West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 642 (1943); Wooley v. Maynard, 430 U.S. 705, 717 (1977). That the Policy Requirement is a funding condition, ra- ther than a direct command, complicated the analysis in AOSI I but did not change the outcome. True, Congress’ Article I spending power “includes the authority to impose limits on the use of [federal] funds to ensure they are used” as “Congress intends,” even conditions that “may affect the recipient’s exercise of its First Amendment rights.” AOSI I, 570 U.S., at 213–214. That is all the first (and unchal- lenged) Leadership Act condition does by forbidding federal funds from being used to promote prostitution or sex traf- ficking. See id., at 217–218. Congress may not, however, “leverage funding to regulate speech outside the contours” of the program it has chosen to subsidize. Id., at 214–215. That, as we will see, is what the Policy Requirement does— and why we held in AOSI I that this second condition vio- lated respondents’ First Amendment rights. The constitutional line is whether a funding condition helps “specify the activities Congress wants to subsidize” or instead seeks to “reach [speech] outside” the federal pro- gram. Id., at 214, 217. We recognized in AOSI I that this line “is not always self-evident.” Id., at 217. To “hel[p] il- lustrate the distinction,” our decision gave two examples from our precedents. Id., at 215. As an example of what the Government may not do, we pointed to our decision FCC v. League of Women Voters of Cal., 468 U.S. 364 (1984). There, the Government required noncommercial broadcasters receiving federal financial as- sistance to refrain from editorializing entirely; they could not even “establish [an] ‘affiliate’ organizatio[n]” to editori- alize on their behalf “with nonfederal funds.” Id., at 400. By giving a broadcaster no way “to make known its views on matters of public importance,” the funding condition in League of Women Voters violated the First Amendment. Cite as: 591 U. S. ____ (2020) 5 BREYER, J., dissenting Id., at 400–401. That condition, as we put it in AOSI I, “went beyond” ensuring that federal funds did not subsidize the broadcasters’ editorial content and therefore distorted their “speech outside the scope of the program.” 570 U.S., at 216. Just the opposite was true in Regan v. Taxation With Representation of Wash., 461 U.S. 540 (1983), the case we cited in AOSI I as an example of what the Government may do. In Regan, a nonprofit group received tax-exempt status as a §501(c)(3) organization on the condition that the organ- ization not engage in lobbying. AOSI I, 570 U.S., at 215 (citing Regan, 461 U.S., at 544). Even though this condi- tion on federal financial assistance affected the nonprofit’s exercise of First Amendment rights, the condition was con- stitutional because it “did not prohibit [the nonprofit] from lobbying Congress altogether.” 570 U.S., at 215. Specifically, the nonprofit in Regan—unlike the broad- casters in League of Women Voters—was permitted to es- tablish an affiliate to carry on its lobbying activities as a §501(c)(4) organization. AOSI I, 570 U.S., at 215 (citing Regan, 461 U.S., at 544). The nonprofit could thus act (and speak) through two corporate entities: The §501(c)(3) organization could get the tax exemption (but not lobby), while the §501(c)(4) organization could lobby (but not get the tax exemption). 570 U.S., at 215. Since requiring the nonprofit to adopt this “ ‘dual structure’ ” was not “ ‘unduly burdensome,’ ” the condition in Regan “did not deny the [nonprofit] a government benefit ‘on account of its intention to lobby.’ ” 570 U.S., at 215 (quoting Regan, 461 U.S., at 545, and n. 6). The condition was thus constitutional, even though it essentially compelled the nonprofit to affiliate with other organizations. See 570 U.S., at 215. In AOSI I, we held “that the Policy Requirement falls on the unconstitutional side of the line” separating League of Women Voters (unconstitutional) and Regan (constitu- tional). 570 U.S., at 217. Like the funding condition in 6 AGENCY FOR INT’L DEVELOPMENT v. ALLIANCE FOR OPEN SOCIETY INT’L, INC. BREYER, J., dissenting League of Women Voters, we explained, the Policy Require- ment affects protected speech outside the scope of the fed- eral program. 570 U.S., at 218. “By requiring recipients to profess a specific belief,” it “goes beyond defining” the pro- gram “to defining the recipient” in the eyes of their global audience. Ibid. Respondents cannot “avow [a] belief dic- tated by” the Government “when spending Leadership Act funds, and then turn around and assert a contrary belief, or claim neutrality,” when acting on their “own time and dime.” Ibid. The Policy Requirement thus conditioned funding on an across-the-board distortion of respondents’ message. See ibid. We further explained in AOSI I—and this is critical— why we could not accept the Government’s suggestion that the case was just a redux of Regan. In AOSI I, the Govern- ment suggested a similar “dual-structure” solution to the First Amendment problem. Like the nonprofit in Regan, the Government noted, respondents could act (and speak) through two corporate entities: One organization could re- ceive Leadership Act funds on respondents’ behalf (and comply with the Policy Requirement), while a legally sepa- rate affiliate could communicate respondents’ preferred message (and not receive Leadership Act funds)—or vice versa. AOSI I, 570 U.S., at 219. True enough. But we rejected the Government’s argument all the same. Why did we reject it? Because corporate formalities do nothing to ward off speech distortion where—like AOSI I, but unlike Regan—the Government has required a speaker to “espouse a specific belief as its own.” 570 U.S., at 219. “If the affiliate is distinct from the recipient,” we reasoned, “the arrangement does not afford a means for the recipient to express its beliefs.” Ibid. And if “the affiliate is more clearly identified with the recipient, the recipient can ex- press those beliefs only at the price of evident hypocrisy.” Ibid. With respect to the latter situation, in other words, compelling a recipient to disavow a message involuntarily Cite as: 591 U. S. ____ (2020) 7 BREYER, J., dissenting uttered by its clearly identified affiliate is forced hypocrisy, not free speech. See ibid. In sum, the Policy Requirement conditioned federal funds on an unavoidable and irreversible distortion of respond- ents’ protected speech. We therefore held in AOSI I that the Policy Requirement “violates the First Amendment and cannot be sustained.” Id., at 221. C On remand from our decision, the District Court did what district courts ought to do. It “tailor[ed] ‘the scope of the remedy’ to fit ‘the nature and extent of the constitutional violation’ ” that we identified in AOSI I. Hills v. Gautreaux, 425 U.S. 284, 294 (1976) (quoting Milliken v. Bradley, 418 U.S. 717, 744 (1974)). The District Court, like our Court, recognized that re- spondents’ work—and with it their protected speech—has a global reach. But respondents, it turns out, use different organizational structures to deliver services in different places. 106 F. Supp. 3d 355, 360–361 (SDNY 2015). Some- times, particularly when foreign governments (or our own government) require, respondents operate through legally separate affiliates incorporated abroad. Ibid.; see also, e.g., App. 368, 373–375. In the District Court’s view, those corporate formalities did not meaningfully change the First Amendment calcu- lus. See 106 F. Supp. 3d, at 360–361. Respondents, to- gether with their affiliates, convey a clear, consistent mes- sage to high-risk populations, government officials, healthcare professionals, prospective employees, and pri- vate donors across the globe. See, e.g., App. 370–371, 391, 460–461. They share the same name, logo, and branding— all of which use identical colors, fonts, and imagery. See, e.g., id., at 445–455. They adhere to shared values, work towards common goals, and coordinate their collective mes- 8 AGENCY FOR INT’L DEVELOPMENT v. ALLIANCE FOR OPEN SOCIETY INT’L, INC. BREYER, J., dissenting sage. See, e.g., id., at 385–386, 404–429. To an outside ob- server, respondents and their affiliates are a single, cohe- sive unit. They speak as one. The District Court consequently concluded that imposing the Policy Requirement on respondents’ affiliates—wher- ever they happen to have been incorporated—would force respondents to “expres[s] contrary positions on the same matter through [their] different organizational compo- nents.” 106 F. Supp. 3d, at 361. To prevent that from hap- pening, and in keeping with the principles we set forth in AOSI I, the District Court enjoined enforcement of the Pol- icy Requirement against respondents and their clearly identified affiliates, including affiliates that were incorpo- rated overseas. Id., at 363. The District Court thought that remedial order necessary to protect respondents’ own First Amendment rights—rights that, as American organiza- tions, respondents unquestionably have. Id., at 361. The Court of Appeals understood the District Court’s or- der that way, too. “The narrow issue before” us, the Court of Appeals explained, “is whether applying the Policy Re- quirement to [respondents’] closely aligned foreign affili- ates violates [respondents’] own First Amendment rights.” 911 F.3d 104, 109 (CA2 2018). The Court of Appeals held that the answer was yes and affirmed on that basis. Ibid. We granted certiorari to review the Court of Appeals’ decision. II The road has been long, but we have arrived at the spe- cific question now before us: whether enforcing the Policy Requirement against respondents’ clearly identified foreign affiliates violates respondents’ own First Amendment rights. Like the District Court and the Court of Appeals, I believe the answer is yes. Our reasoning in AOSI I, along with the body of prece- dent on which it relied, should decide this case. Just as Cite as: 591 U. S. ____ (2020) 9 BREYER, J., dissenting compelling a clearly identified domestic affiliate to espouse a government message distorts respondents’ own protected speech, AOSI I, 570 U.S., at 219, so too does compelling a clearly identified foreign affiliate to espouse the same gov- ernment message. Either way, federal funding conditioned on that affirmative avowal of belief comes at an unconstitu- tionally high “price of evident hypocrisy.” Ibid. Properly understood, our speech-misattribution cases— in particular Hurley v. Irish-American Gay, Lesbian and Bi- sexual Group of Boston, Inc., 515 U.S. 557 (1995)—confirm that common-sense conclusion. Any other result would un- dermine First Amendment protections for the countless American speakers who address audiences overseas. A Respondents should prevail here for the same reasons they prevailed in AOSI I. When respondents speak through legally separate but clearly identified affiliates, we held, that speech is attributed to respondents for First Amend- ment purposes. AOSI I, 570 U.S., at 219. So when the Government demands as a condition of federal funding that their clearly identified affiliate “espouse a specific belief as its own,” respondents may express a contrary view through some other corporate channel only on pain of appearing hypocritical. Ibid. Leveraging Congress’ Article I spending power to distort respondents’ protected speech in this way therefore violates respondents’ First Amendment rights— whatever else might be said about the affiliate’s own First Amendment rights (or asserted lack thereof ). Ibid. These principles apply with full force to the dispute now before us. Respondents and their affiliates receive federal funding to fight HIV/AIDS overseas. What has been at stake in this case from the beginning, then, is protected speech often aimed at audiences abroad. Our decision in AOSI I shielded respondents’ global message from govern- 10 AGENCY FOR INT’L DEVELOPMENT v. ALLIANCE FOR OPEN SOCIETY INT’L, INC. BREYER, J., dissenting ment-compelled distortion in the eyes of those foreign audi- ences, as well as listeners here at home. Ibid. Yet in the wake of our ruling, respondents have continued to suffer that exact same First Amendment harm. True, respondents’ international mission sometimes re- quires that they convey their message through affiliates in- corporated in far-off countries, rather than registered here at home. But so what? Audiences everywhere attribute speech based on whom they perceive to be speaking, not on corporate paperwork they will never see. What mattered in AOSI I was thus how “clearly identified” the affiliates were with respondents, not the fact that the affiliates were incor- porated as separate legal entities. Ibid. And what matters now is once again how “clearly identified” the affiliates are with respondents, not the fact that the affiliates were incor- porated as foreign legal entities. The First Amendment question therefore hinges, as it did before, on what an objective observer sees, hears, and un- derstands when respondents speak through their foreign affiliates. As to that, not even the Government meaning- fully disputes that respondents and their foreign affiliates are clearly identified with one another. Their appearances are the same. Their goals are the same. Their values are the same. Their message is the same. Leveraging Congress’ spending power to demand speech from respondents’ for- eign affiliates distorts that shared message—and violates respondents’ First Amendment rights. So while respond- ents and their clearly identified foreign affiliates may be technically different entities with respect to such matters as contracts, taxes, and torts, they are constitutionally the same speaker when it comes to the protected speech at is- sue in this case. This two-entities-one-speaker principle is an established part of our First Amendment jurisprudence. Take Regan. To refresh, in that case we upheld a ban on engaging in cer- tain protected speech (lobbying) that the federal tax code Cite as: 591 U. S. ____ (2020) 11 BREYER, J., dissenting imposed on a nonprofit’s §501(c)(3) organization because the nonprofit could still speak through a separate §501(c)(4) organization. See 461 U.S., at 544. Put simply, one speaker (the nonprofit) could act (and speak) through two legally separate entities (the §501(c)(3) and §501(c)(4) or- ganizations). Recall also our similar observation in League of Women Voters. There we noted that a funding condition’s ban on editorializing would have been constitutional if, in contrast to the law at issue, the statute let noncommercial broad- casters “make known” their “views on matters of public im- portance” by speaking through legally separate “editorial- izing affiliate[s].” 468 U.S., at 400. Once again, we made clear that a single speaker can act (and speak) through two legally separate entities. But because the speaker in League of Women Voters was not free to do so, we held that the Government’s funding condition violated the First Amendment. Id., at 400–401. Regan and League of Women Voters are far from our only precedents recognizing this firmly entrenched First Amendment principle. See Legal Services Corporation v. Velazquez, 531 U.S. 533, 546 (2001) (observing that organ- izational affiliates may provide “alternative channel[s] for expression” by a single speaker); Rust v. Sullivan, 500 U.S. 173, 196–198 (1991) (similar). We reiterated that rule once again in AOSI I. See 570 U.S., at 215–217, 219. Thus, in the First Amendment context, the corporate veil is not an iron curtain. Just the opposite. We attribute speech across corporate lines all the time. Rightly so. When a funding condition restricts speech, this familiar framework often avoids First Amendment problems by allowing “alternative channel[s]” for speakers to express themselves. Velazquez, 531 U.S., at 546. And when a funding condition compels speech, the same logic leads to a similarly sensible result: The Government may not require you to speak out of both sides of your mouth, 12 AGENCY FOR INT’L DEVELOPMENT v. ALLIANCE FOR OPEN SOCIETY INT’L, INC. BREYER, J., dissenting even if each side happens to have been incorporated as a separate legal entity. See AOSI I, 570 U.S., at 219. A contrary approach would have led to a rather surpris- ing result in AOSI I. Assume for a moment that the Policy Requirement simply commanded respondents’ clearly iden- tified affiliates to speak—the kind of “direct regulation of speech” that we said “would plainly violate the First Amendment,” id., at 213. Treating corporate lines as iron- clad would mean that respondents could not object to that direct distortion of their own message. Under all the cases just discussed, however, that cannot be right. And as dis- cussed below, it is equally wrong under our cases involving speech misattribution. B The First Amendment protects speakers from govern- ment compulsion that is likely to cause an audience to mis- take someone else’s message for the speaker’s own views. See, e.g., Hurley, 515 U.S., at 572–573; Pacific Gas & Elec. Co. v. Public Util. Comm’n of Cal., 475 U.S. 1, 15–16 (1986). Corporate separation makes no meaningful difference in this speech-misattribution context, either. Consider our unanimous decision in Hurley. In that case, a group called the South Boston Allied War Veterans Council organized a parade. 515 U.S., at 560. The Irish- American Gay, Lesbian and Bisexual Group of Boston—a separate group who called themselves “GLIB” for short— wanted to participate. Id., at 561. After the Veterans Council said no, GLIB obtained a court order directing the Veterans Council to let GLIB march in the parade. Id., at 561–562. Recognizing that “every participating unit affects the message conveyed by the parade organizers,” we held in Hurley that the order distorted the Veterans Council’s pro- tected speech. Id., at 572–573. Because GLIB wanted to “carr[y] its own banner” with its own message, and because Cite as: 591 U. S. ____ (2020) 13 BREYER, J., dissenting onlookers would understand GLIB as “contribut[ing] some- thing to” the parade’s “common theme,” the order “essen- tially requir[ed]” the Veterans Council “to alter the expres- sive content of their parade.” Id., at 572–573, 576. That violated the First Amendment. Id., at 573. The First Amendment violation in this case is even more apparent. In Hurley, the Veterans Council had merely “combin[ed] multifarious voices” of disparate groups with- out bothering to “isolate an exact message,” yet the First Amendment protected its message from government- compelled distortion all the same. Id., at 569. Respondents in this case have done the Veterans Council one better. They have carefully constructed a cogent message and mar- shaled their clearly identified foreign affiliates to express it across the globe. See supra, at 7–8, 10. Furthermore, in Hurley we could only speculate about what GLIB’s exact message was and why the Veterans Council did not want to be associated with it. See 515 U.S., at 574–575. But here we know exactly what the challenged message is (“a policy explicitly opposing prostitution and sex trafficking”) and why respondents don’t want to be as- sociated with it (the message, among other things, purport- edly “ ‘stigmatizes one of the very groups whose trust [re- spondents] must earn to conduct effective HIV/AIDS prevention’ ”). 22 U.S. C. §7631(f ); Brief for Respondents 11. For that reason as well, the First Amendment injury in this case is open, obvious, and unusually well defined. True, Hurley and our other speech-misattribution cases dealt with a speaker complaining about being forced to af- filiate with someone else’s speech, rather than (as here) their pre-existing affiliate being forced to speak. Cf. ante, at 6. But that factual distinction makes no constitutional difference. From a First Amendment perspective, the latter situation is just as bad or even worse, not better. Consider Hurley again. If, rather than requiring the Vet- erans Council to let GLIB march while carrying its banner, 14 AGENCY FOR INT’L DEVELOPMENT v. ALLIANCE FOR OPEN SOCIETY INT’L, INC. BREYER, J., dissenting the state court had ordered a previously invited marcher (or worse still, all previously invited marchers) to display GLIB’s banner, the Veterans Council would have prevailed all the same. By compelling speech from an existing affili- ate (or all of them), that order would have required, even more brazenly, that the Veterans Council “alter the expres- sive content of their parade” in violation of the Veterans Council’s First Amendment rights. 515 U.S., at 572–573. So too if the state court had decreed that GLIB’s banner must adorn a horse, oxen, or for that matter R2–D2, a robot—even though those entities lack their own First Amendment rights. Whether the transmitter of a speaker’s protected message does (or does not) have its own First Amendment rights is beside the point. Cf. Wooley, 430 U.S., at 717 (prohibiting New Hampshire from requiring that the state motto adorn a driver’s car, even though cars do not have First Amendment rights). There is a reason why, until today, we had not confronted a case like the one just described. Cf. ante, at 6. Requiring someone to host another person’s speech is often a perfectly legitimate thing for the Government to do. See, e.g., FAIR, 547 U.S., at 65 (holding that the Government may require law schools to host speech from military recruiters); Prune- Yard Shopping Center v. Robins, 447 U.S. 74, 87–88 (1980) (holding that the Government may require the owner of a private shopping mall to host speech from politically minded pamphleteers). Even the court order at issue in Hurley was an understandable (though unconstitutional) application of a “venerable” civil rights law. See 515 U.S., at 571. But because compelling people to profess a belief they do not hold is almost always unconstitutional, see AOSI I, 570 U.S., at 213, the Government rarely dares try. The Government’s well-founded reticence in the past is no reason to bless its boldness at present. Bottom line: The critical question here, as in Hurley, is Cite as: 591 U. S. ____ (2020) 15 BREYER, J., dissenting simply whether the Government has demanded a profes- sion of belief that will distort the speaker’s message. How the Government causes that distortion makes no constitu- tional difference. And as explained, enforcing the Policy Re- quirement against respondents’ clearly identified foreign affiliates would plainly distort respondents’ message. See supra, at 7–8, 10. That violates respondents’ First Amend- ment rights. C So far as I am aware, we have never before held that an American speaker forfeits First Amendment protection when it speaks though foreign affiliates to reach audiences overseas. It is easy to understand why. Many American news networks operate through clearly identified foreign affiliates when speaking abroad. Viewers attribute that speech to an American speaker: the network. That is the whole point of using clearly identified foreign affiliates. For example, CNN speaks to audiences in the Philippines, Brazil, Indonesia, and other countries using foreign affiliates, usually styled as CNN Philippines, CNN Brazil, CNN Indonesia, and so on. See CNN Worldwide Fact Sheet (Oct. 2019), https:// cnnpressroom.blogs.cnn.com/cnn-fact-sheet. But does that corporate structure mean that CNN—i.e., the American parent organization—has no First Amendment protection against a Government effort to, say, prevent CNN Mexico from covering the fatal shooting of a Mexican child by a U. S. Border Patrol agent? Cf. Hernández v. Mesa, 589 U. S. ___ (2020) (Hernández II ). Or to compel CNN Mexico to run a different story, perhaps one produced by Govern- ment personnel, that praises American policy at the border? We should be highly skeptical. If the Government com- mandeered CNN’s clearly identified foreign affiliate in these or similar ways, whether by monetary pressure or 16 AGENCY FOR INT’L DEVELOPMENT v. ALLIANCE FOR OPEN SOCIETY INT’L, INC. BREYER, J., dissenting some other means, CNN should have constitutional re- course. Some critical foreign policy interests might compli- cate the First Amendment calculus—say, a wartime need to keep future battle plans secret. But nothing like that is present here. And it is difficult to accept the notion that the First Amendment permits the Government to suppress, compel, or otherwise distort any and all American speech transmitted abroad through a clearly identified foreign af- filiate. III The upshot is: (1) The messages at issue here belong to American speakers; (2) clearly identified foreign affiliates are a critical means of conveying those messages overseas; and (3) enforcing the Policy Requirement against those af- filiates distorts respondents’ own protected speech—and thus violates respondents’ own First Amendment rights. The majority justifies its contrary result on three main grounds, two of which it says are “bedrock principles” of American law. See ante, at 3–6, 8. I do not find these ar- guments persuasive. A The first “bedrock principle” on which the majority relies is the supposedly long-settled, across-the-board rule “that foreign citizens outside U. S. territory do not possess rights under the U. S. Constitution.” Ante, at 3. That sweeping assertion is neither relevant to this case nor correct on the law. It is not relevant because, as I have said, this case does not concern the constitutional rights of foreign organiza- tions. This case concerns the constitutional rights of Amer- ican organizations. Every respondent here is—and has al- ways been—American. AOSI I, 570 U.S., at 210; see also Brief for Petitioners 7, 19 (acknowledging as much). No for- eign entities are party to this case, and respondents have Cite as: 591 U. S. ____ (2020) 17 BREYER, J., dissenting never claimed that the Policy Requirement violates any- one’s First Amendment rights apart from their own. Both the District Court and the Court of Appeals decided the case on that basis. The question before us is clear: whether the First Amendment protects Americans when they speak through clearly identified foreign affiliates to reach audi- ences overseas. See supra, at 8. Whether the foreign affil- iates themselves have their own First Amendment rights is not at issue. See Brief for Respondents 36, n. 3. Even taken on its own terms, the majority’s blanket as- sertion about the extraterritorial reach of our Constitution does not reflect the current state of the law. The idea that foreign citizens abroad never have constitutional rights is not a “bedrock” legal principle. At most, one might say that they are unlikely to enjoy very often extraterritorial protec- tion under the Constitution. Or one might say that the mat- ter is undecided. But this Court has studiously avoided es- tablishing an absolute rule that forecloses that protection in all circumstances. In Hernández v. Mesa, 582 U. S. ___ (2017) (per curiam) (Hernández I ), for example, we specifically declined to de- cide the “sensitive” question whether, on the facts then be- fore us, a Mexican citizen standing on Mexican soil had Fourth Amendment rights—precisely because the answer to that extraterritoriality question “may have consequences that are far reaching.” Id., at ___ (slip op., at 5). Hernández later came to this Court again, and we decided the case on alternative grounds. See Hernández II, 589 U. S., at ___– ___ (slip op., at 19–20). Were the majority’s categorical rule of (non)extraterritoriality etched in stone, we could have disposed of Hernández the first time around in a few short sentences. Nor do the cases that the majority cites support an abso- lute rule. See ante, at 3. The exhaustive review of our prec- edents that we conducted in Boumediene v. Bush, 553 U.S. 723 (2008), pointed to the opposite conclusion. In 18 AGENCY FOR INT’L DEVELOPMENT v. ALLIANCE FOR OPEN SOCIETY INT’L, INC. BREYER, J., dissenting Boumediene, we rejected the Government’s argument that our decision in Johnson v. Eisentrager, 339 U.S. 763 (1950), “adopted a formalistic” test “for determining the reach” of constitutional protection to foreign citizens on foreign soil. 553 U.S., at 762. This is to say, we rejected the position that the majority propounds today. See ante, at 4, and n. (quoting Eisentrager at length). Its “constricted reading” of Eisentrager and our other precedents is not the law. See Boumediene, 553 U.S., at 764; see also, e.g., Neuman, Un- derstanding Global Due Process, 23 Geo. Immigration L. J. 365, 400 (2009) (describing our cases as rejecting any abso- lute view). The law, we confirmed in Boumediene, is that constitu- tional “questions of extraterritoriality turn on objective fac- tors and practical concerns” present in a given case, “not formalism” of the sort the majority invokes today. 553 U.S., at 764. Those considerations include the extent of de facto U. S. Government control (if any) over foreign ter- ritory. See ante, at 4. But they also include the nature of the constitutional protection sought, how feasible extending it would be in a given case, and the foreign citizen’s status vis-à-vis the United States, among other pertinent circum- stances that might arise. 553 U.S., at 766; see also United States v. Verdugo-Urquidez, 494 U.S. 259, 278 (1990) (Ken- nedy, J., concurring) (providing the decisive fifth vote for rejecting a foreign citizen’s claim to constitutional protec- tion on foreign soil outside U. S. control because “[t]he con- ditions and considerations of this case would make adher- ence to the Fourth Amendment’s warrant requirement impracticable and anomalous” (emphasis added)). Our precedents reject absolutism. Indeed, even our most sweep- ing statements about foreign citizens’ (lack of ) constitu- tional rights while outside U. S. Territory have come with limits. See, e.g., Landon v. Plasencia, 459 U.S. 21, 32 (1982) (noting that “an alien seeking initial admission to” Cite as: 591 U. S. ____ (2020) 19 BREYER, J., dissenting this country “has no constitutional rights regarding his ap- plication” (emphasis added)); Kleindienst v. Mandel, 408 U.S. 753, 762 (1972) (similar). There is wisdom in our past restraint. Situations where a foreign citizen outside U. S. Territory might fairly assert constitutional rights are not difficult to imagine. Long-term permanent residents are “foreign citizens.” Does the Con- stitution therefore allow American officials to assault them at will while “outside U. S. territory”? Many international students attend college in the United States. Does the First Amendment permit a public university to revoke their ad- mission based on an unpopular political stance they took on social media while home for the summer? Foreign citizens who have never set foot in the United States, for that mat- ter, often protest when Presidents travel overseas. Does that mean Secret Service agents can, consistent with our Constitution, seriously injure peaceful protestors abroad without any justification? We have never purported to give a single “bedrock” an- swer to these or myriad other extraterritoriality questions that might arise in the future. To purport to do so today, in a case where the question is not presented and where the matter is not briefed, is in my view a serious mistake. And there is no need to set forth an absolute rule here. Respondents have conceded that their foreign affiliates lack First Amendment rights of their own while acting abroad. See ante, at 3. If in spite of everything else, the majority considers this point material to its decision, all that need be said is: “We accept respondents’ concession and proceed on that basis.” To say so much more “run[s] contrary to the fundamental principal of judicial restraint,” a principle that applies with particular force to constitutional interpreta- tion. Washington State Grange v. Washington State Repub- lican Party, 552 U.S. 442, 450 (2008); see also, e.g., Lyng v. Northwest Indian Cemetery Protective Assn., 485 U.S. 439, 20 AGENCY FOR INT’L DEVELOPMENT v. ALLIANCE FOR OPEN SOCIETY INT’L, INC. BREYER, J., dissenting 445 (1988); Three Affiliated Tribes of Fort Berthold Reser- vation v. Wold Engineering, P. C., 467 U.S. 138, 158 (1984); United States v. Raines, 362 U.S. 17, 21 (1960); Liverpool, New York & Philadelphia S. S. Co. v. Commissioners of Em- igration, 113 U.S. 33, 39 (1885). B The majority’s second supposedly “bedrock principle” is that “separately incorporated organizations are separate le- gal units with distinct legal rights and obligations.” Ante, at 5. Sometimes true, sometimes not. This baseline rule gives way in many contexts, and our First Amendment precedents (including AOSI I ) refute any suggestion that a workaday principle of corporate law somehow resolves the constitutional issue here in dispute. As the majority acknowledges, corporate law itself per- mits courts to pierce or otherwise disregard the corporate veil in a variety of circumstances. See ante, at 5. Those narrow exceptions, however, are not the only time the law looks past corporate formalities. For instance, we have treated “several nominally separate business entities” as “a single employer” for purposes of federal labor law. Radio & Television Technicians v. Broadcast Service of Mobile, Inc., 380 U.S. 255, 256 (1965) (per curiam). Earlier this Term, we reaffirmed that one corporate entity may sometimes in- voke the right of another, legally separate entity to compel arbitration. See GE Energy Power Conversion France SAS v. Outokumpu Stainless USA, LLC, 590 U. S. ___, ___ (2020) (slip op., at 4). And these are far from the only rele- vant examples. See, e.g., American Needle, Inc. v. National Football League, 560 U.S. 183, 196 (2010) (observing that, in many antitrust cases, corporate formalities are “not de- terminative”). More to the point, our First Amendment precedents leave no doubt that corporate formalities have little to say about the issue now before us. We have made clear again and Cite as: 591 U. S. ____ (2020) 21 BREYER, J., dissenting again (and again) that speech may be attributed across cor- porate lines in the First Amendment context—including in our previous opinion in this very case. See AOSI I, 570 U.S., at 219 (concluding that speech uttered involuntarily by legally separate affiliates may be attributed to respond- ents if the affiliates are “clearly identified” with respond- ents); League of Women Voters, 468 U.S., at 400 (observing that funding conditions that restrict speech can survive constitutional scrutiny if the speaker may “make known its views on matters of public importance through” a legally separate affiliate—and if not, not); Regan, 461 U.S., at 544 (similar); Rust, 500 U.S., at 196–198 (similar); Velazquez, 531 U.S., at 546–547 (similar). And these precedents fur- ther establish that merely requiring speakers to work through affiliates is “not unduly burdensome” and can therefore cure, rather than create, First Amendment con- cerns. Regan, 461 U.S., at 545, n. 6. Contra, ante, at 8 (suggesting that such a requirement would be unconstitu- tional). Small wonder the majority can muster only two context-specific and statute-specific cases—one addressing the Foreign Sovereign Immunities Act, the other involving the Racketeer Influence and Corrupt Organizations Act— as affirmative support for its conclusion that corporate for- malities somehow control the First Amendment question before us. See ante, at 5 (citing Dole Food Co. v. Patrickson, 538 U.S. 468 (2003), and Cedric Kushner Promotions, Ltd. v. King, 533 U.S. 158 (2001)). The majority also attempts to distinguish the facts before us now from the facts that were before us last time. It as- serts that, in contrast to the affiliations we addressed in AOSI I, respondents’ “current affiliations with foreign or- ganizations are their own choice.” Ante, at 8. There are two problems with this. First, the description is not accurate. Foreign governments—and increasingly, the U. S. Govern- ment—often require respondents to work through foreign 22 AGENCY FOR INT’L DEVELOPMENT v. ALLIANCE FOR OPEN SOCIETY INT’L, INC. BREYER, J., dissenting affiliates. See, e.g., App. 368, 373–375. Second, even if re- spondents’ associations with foreign affiliates were volun- tary, it would not solve the First Amendment problem. In Wooley, for example, it was the drivers’ choice to own a car, but that did not mean they could be compelled to con- vey the Government’s message on their car’s license plate. See 430 U.S., at 717. And in Hurley, as explained, the Gov- ernment would have violated the parade organizers’ First Amendment rights just the same if it had compelled speech from a previously invited marcher, whether human, ani- mal, or droid. See supra, at 13–14. Can the majority really mean to suggest otherwise, simply because the parade or- ganizers’ decision to invite the marcher in the first place was “their own choice”? C The majority also makes two practical arguments, but neither justifies the First Amendment costs of its decision. The majority first says that a ruling in respondents’ favor would disrupt American foreign policy by requiring the Government to fund “organizations that may not align with U. S. values.” Ante, at 6. We dismissed this same concern in AOSI I. The Policy Requirement, we explained, does not merely help the Government “enlist the assistance of those with whom it already agrees.” AOSI I, 570 U.S., at 218. It pressures funding recipients “to adopt a particular belief.” Ibid. (emphasis added). All that is at stake here, in other words, is whether the Government may leverage the power of the purse to win converts to its cause. That bare desire to regulate protected speech is far from any foreign policy interest that could conceivably overcome a speaker’s First Amendment right to convey its message free from government-compelled distortion. Cf. New York Times Co. v. United States, 403 U.S. 713 (1971) (per curiam). The majority also fears that determining whether Gov- ernment action creates a risk of speech misattribution (and Cite as: 591 U. S. ____ (2020) 23 BREYER, J., dissenting with it speech distortion) is a “legally unmoored” standard rife with “difficult line-drawing exercises.” Ante, at 8. But we have drawn just this kind of line many times. See, e.g., PruneYard, 447 U.S., at 87 (holding that “views expressed by members of the public” in a privately owned shopping mall “will not likely be identified with those of the owner”); Hurley, 515 U.S., at 572 (holding that a marcher’s message will likely be attributed to the parade organizer’s, since “every participating unit” in a parade “affects the [overall] message”); FAIR, 547 U.S., at 65 (holding that nothing about having military recruiters on campus “suggests that law schools agree with any speech by recruiters”). I should think that the price of making difficult judgment calls is well worth paying to protect First Amendment rights. See McCutcheon v. Federal Election Comm’n, 572 U.S. 185, 209 (2014); Lloyd Corp. v. Tanner, 407 U.S. 551, 570 (1972). And “on the facts presented in this case,” at any rate, “the answer is clear.” Id., at 570. Enforcing the Policy Require- ment violates respondents’ First Amendment rights, just as it did before. * * * The Court today concludes that respondents’ foreign af- filiates “do not have a First Amendment right to disregard the Policy Requirement.” Ante, at 9. Respondents have never argued otherwise. Rather, throughout this litigation they have asserted their own First Amendment right to speak their mind, rather than the Government’s message. Here, respondents claim First Amendment protection when they speak through foreign affiliates to address audiences abroad. By denying respondents that protection, I fear the Court’s decision will seriously impede the countless Ameri- can speakers who communicate overseas in a similar way. That weakens the marketplace of ideas at a time when the value of that marketplace for Americans, and for others, reaches well beyond our shores. With respect, I dissent	The Court, in my view, asks the wrong question and gives the wrong answer This case is not about the First Amend- ment rights of foreign organizations t is about—and has always been about—the First Amendment rights of Ameri- can organizations The last time this case came before us, those American organizations vindicated their constitutional right to speak freely, both at home and abroad n Agency for nt’l Devel- (2013) (AOS ), we held that the First Amendment forbids the Government from distorting their speech by requiring, as a condition of receiving federal funds, that they “pledge allegiance” to a state-sponsored message This time, the question is whether the American organi- zations enjoy that same constitutional protection against government-compelled distortion when they speak through clearly identified affiliates that have been incorporated overseas The answer to that question, as see it, is yes dissent from the Court’s contrary conclusion 2 AGENCY FOR NT’L DEVELOPMENT v ALLANCE FOR OPEN SOCETY NT’L, NC BREYER, J, dissenting To understand the issue now before us, one must appre- ciate how it got here Given this litigation’s lengthy history, that requires a rather detailed look at why this dispute first arose, what we decided in our prior decision (namely, AOS ), and where the case proceeded from there A As we explained in AOS the plaintiffs in this action (respondents in this Court then and now) “are a group of domestic organizations engaged in combating HV/ADS overseas” Their lifesaving work spans multiple continents For example, respondents run “pro- grams aimed at limiting injection drug use in Uzbekistan, Tajikistan, and Kyrgyzstan, preventing mother-to-child HV transmission in Kenya, and promoting safer sex prac- tices in ndia” Respondents also counsel high-risk populations such as sex workers, encourage foreign govern- ments to adopt beneficial public policies, and share infor- mation about best practices in publications and at confer- ences See ibid; App 171, 7, 222, 419 To support these international efforts, respondents must make fundraising appeals to donors worldwide See, eg, 431– 433, 457 But crucially for both their mission and for this case, respondents also “receive billions [of dollars] annually in financial assistance from the United States” AOS US, One of respondents’ primary sources of federal funding is the United States Leadership Against HV/ADS, Tubercu- losis, and Malaria Act of 2003 as amended, 22 US C et seq (Leadership Act) Congress en- acted the Leadership Act with the goal of creating “a ‘com- prehensive, integrated’ strategy to combat HV/ADS around the world” AOS (quoting To that end, the statute allocates considerable federal dollars to nongovernmental organizations fighting Cite as: 591 U S (2020) 3 BREYER, J, dissenting HV/ADS abroad at –1 But Leadership Act funding comes with strings attached Two, in particular First, no Leadership Act funds “ ‘may be used to promote or advocate the legalization or practice of prostitution or sex trafficking’ ” (quoting Second, with some exceptions not relevant here, any recipient of Leadership Act funds must have “ ‘a policy explicitly opposing prostitution and sex trafficking’ ” at 0 (quoting )) The first condition limiting how Leadership Act funds may be spent has never been chal- lenged in this litigation What has driven this decades-long dispute is the second condition, the “Policy Re- quirement” that requires recipients to espouse a govern- ment message Concerned that “adopting a policy explicitly opposing prostitution” could “alienate certain host governments” and “mak[e] it more difficult to work with prostitutes in the fight against HV/ADS,” respondents sued They asserted that the Policy Requirement put an uncon- stitutional condition on the receipt of federal funds and was thus unenforceable Accordingly, as the case came to us in AOS the question was whether this fund- ing condition violated respondents’ First Amendment rights B The answer, we held in AOS was yes Our reasoning then demands close inspection now To begin, we observed in AOS that “the Policy Require- ment would plainly violate the First Amendment” if it op- erated “as a direct regulation of speech” Com- manding someone to speak a government message contravenes the “basic First Amendment principle that ‘freedom of speech prohibits the government from telling people what they must say’ ” (quoting Rumsfeld v Forum for Academic and nstitutional Rights, nc, 547 4 AGENCY FOR NT’L DEVELOPMENT v ALLANCE FOR OPEN SOCETY NT’L, NC BREYER, J, dissenting U S 47, 61 (2006) (FAR)); see also, eg, West Virginia Bd of ; Wooley v Maynard, That the Policy Requirement is a funding condition, ra- ther than a direct command, complicated the analysis in AOS but did not change the outcome True, Congress’ Article spending power “includes the authority to impose limits on the use of [federal] funds to ensure they are used” as “Congress intends,” even conditions that “may affect the recipient’s exercise of its First Amendment rights” AOS US, –4 That is all the first (and unchal- lenged) Leadership Act condition does by forbidding federal funds from being used to promote prostitution or sex traf- ficking See –8 Congress may not, however, “leverage funding to regulate speech outside the contours” of the program it has chosen to subsidize at 4–5 That, as we will see, is what the Policy Requirement does— and why we held in AOS that this second condition vio- lated respondents’ First Amendment rights The constitutional line is whether a funding condition helps “specify the activities Congress wants to subsidize” or instead seeks to “reach [speech] outside” the federal pro- gram We recognized in AOS that this line “is not always self-evident” To “hel[p] il- lustrate the distinction,” our decision gave two examples from our precedents As an example of what the Government may not do, we pointed to our decision There, the Government required noncommercial broadcasters receiving federal financial as- sistance to refrain from editorializing entirely; they could not even “establish [an] ‘affiliate’ organizatio[n]” to editori- alize on their behalf “with nonfederal funds” By giving a broadcaster no way “to make known its views on matters of public importance,” the funding condition in League of Women violated the First Amendment Cite as: 591 U S (2020) 5 BREYER, J, dissenting –401 That condition, as we put it in AOS “went beyond” ensuring that federal funds did not subsidize the broadcasters’ editorial content and therefore distorted their “speech outside the scope of the program” US, at 6 Just the opposite was true in the case we cited in AOS as an example of what the Government may do n a nonprofit group received tax-exempt status as a organization on the condition that the organ- ization not engage in lobbying AOS US, (citing ) Even though this condi- tion on federal financial assistance affected the nonprofit’s exercise of First Amendment rights, the condition was con- stitutional because it “did not prohibit [the nonprofit] from lobbying Congress altogether” US, Specifically, the nonprofit in —unlike the broad- casters in League of Women —was permitted to es- tablish an affiliate to carry on its lobbying activities as a organization AOS US, (citing ) The nonprofit could thus act (and speak) through two corporate entities: The organization could get the tax exemption (but not lobby), while the organization could lobby (but not get the tax exemption) US, Since requiring the nonprofit to adopt this “ ‘dual structure’ ” was not “ ‘unduly burdensome,’ ” the condition in “did not deny the [nonprofit] a government benefit ‘on account of its intention to lobby’ ” US, (quoting 461 US, at 545, and n 6) The condition was thus constitutional, even though it essentially compelled the nonprofit to affiliate with other organizations See US, n AOS we held “that the Policy Requirement falls on the unconstitutional side of the line” separating League of Women (unconstitutional) and (constitu- tional) US, Like the funding condition in 6 AGENCY FOR NT’L DEVELOPMENT v ALLANCE FOR OPEN SOCETY NT’L, NC BREYER, J, dissenting League of Women we explained, the Policy Require- ment affects protected speech outside the scope of the fed- eral program US, at 8 “By requiring recipients to profess a specific belief,” it “goes beyond defining” the pro- gram “to defining the recipient” in the eyes of their global audience Respondents cannot “avow [a] belief dic- tated by” the Government “when spending Leadership Act funds, and then turn around and assert a contrary belief, or claim neutrality,” when acting on their “own time and dime” The Policy Requirement thus conditioned funding on an across-the-board distortion of respondents’ message See ibid We further explained in AOS —and this is critical— why we could not accept the Government’s suggestion that the case was just a redux of n AOS the Govern- ment suggested a similar “dual-structure” solution to the First Amendment problem Like the nonprofit in the Government noted, respondents could act (and speak) through two corporate entities: One organization could re- ceive Leadership Act funds on respondents’ behalf (and comply with the Policy Requirement), while a legally sepa- rate affiliate could communicate respondents’ preferred message (and not receive Leadership Act funds)—or vice versa AOS US, at 9 True enough But we rejected the Government’s argument all the same Why did we reject it? Because corporate formalities do nothing to ward off speech distortion where—like AOS but unlike —the Government has required a speaker to “espouse a specific belief as its own” US, at 9 “f the affiliate is distinct from the recipient,” we reasoned, “the arrangement does not afford a means for the recipient to express its beliefs” And if “the affiliate is more clearly identified with the recipient, the recipient can ex- press those beliefs only at the price of evident hypocrisy” With respect to the latter situation, in other words, compelling a recipient to disavow a message involuntarily Cite as: 591 U S (2020) 7 BREYER, J, dissenting uttered by its clearly identified affiliate is forced hypocrisy, not free speech See ibid n sum, the Policy Requirement conditioned federal funds on an unavoidable and irreversible distortion of respond- ents’ protected speech We therefore held in AOS that the Policy Requirement “violates the First Amendment and cannot be sustained” C On remand from our decision, the District Court did what district courts ought to do t “tailor[ed] ‘the scope of the remedy’ to fit ‘the nature and extent of the constitutional violation’ ” that we identified in AOS Hills v Gautreaux, 425 US 284, (quoting Milliken v Bradley, 418 US 744 (1974)) The District Court, like our Court, recognized that re- spondents’ work—and with it their protected speech—has a global reach But respondents, it turns out, use different organizational structures to deliver services in different places 106 F Supp 3d 355, Some- times, particularly when foreign governments (or our own government) require, respondents operate through legally separate affiliates incorporated abroad ; see also, eg, App 368, 373–375 n the District Court’s view, those corporate formalities did not meaningfully change the First Amendment calcu- lus See 106 F Supp 3d, at Respondents, to- gether with their affiliates, convey a clear, consistent mes- sage to high-risk populations, government officials, healthcare professionals, prospective employees, and pri- vate donors across the globe See, eg, App 370–371, 1, 460–461 They share the same name, logo, and branding— all of which use identical colors, fonts, and imagery See, eg, at 445–455 They adhere to shared values, work towards common goals, and coordinate their collective mes- 8 AGENCY FOR NT’L DEVELOPMENT v ALLANCE FOR OPEN SOCETY NT’L, NC BREYER, J, dissenting sage See, eg, at 385–386, 404–429 To an outside ob- server, respondents and their affiliates are a single, cohe- sive unit They speak as one The District Court consequently concluded that imposing the Policy Requirement on respondents’ affiliates—wher- ever they happen to have been incorporated—would force respondents to “expres[s] contrary positions on the same matter through [their] different organizational compo- nents” 106 F Supp 3d, To prevent that from hap- pening, and in keeping with the principles we set forth in AOS the District Court enjoined enforcement of the Pol- icy Requirement against respondents and their clearly identified affiliates, including affiliates that were incorpo- rated overseas The District Court thought that remedial order necessary to protect respondents’ own First Amendment rights—rights that, as American organiza- tions, respondents unquestionably have The Court of Appeals understood the District Court’s or- der that way, too “The narrow issue before” us, the Court of Appeals explained, “is whether applying the Policy Re- quirement to [respondents’] closely aligned foreign affili- ates violates [respondents’] own First Amendment rights” 911 F3d 104, The Court of Appeals held that the answer was yes and affirmed on that basis We granted certiorari to review the Court of Appeals’ decision The road has been long, but we have arrived at the spe- cific question now before us: whether enforcing the Policy Requirement against respondents’ clearly identified foreign affiliates violates respondents’ own First Amendment rights Like the District Court and the Court of Appeals, believe the answer is yes Our reasoning in AOS along with the body of prece- dent on which it relied, should decide this case Just as Cite as: 591 U S (2020) 9 BREYER, J, dissenting compelling a clearly identified domestic affiliate to espouse a government message distorts respondents’ own protected speech, AOS US, at 9, so too does compelling a clearly identified foreign affiliate to espouse the same gov- ernment message Either way, federal funding conditioned on that affirmative avowal of belief comes at an unconstitu- tionally high “price of evident hypocrisy” Properly understood, our speech-misattribution cases— in particular v rish-American Gay, Lesbian and Bi- sexual Group of Boston, nc, 515 US 557 —confirm that common-sense conclusion Any other result would un- dermine First Amendment protections for the countless American speakers who address audiences overseas A Respondents should prevail here for the same reasons they prevailed in AOS When respondents speak through legally separate but clearly identified affiliates, we held, that speech is attributed to respondents for First Amend- ment purposes AOS US, at 9 So when the Government demands as a condition of federal funding that their clearly identified affiliate “espouse a specific belief as its own,” respondents may express a contrary view through some other corporate channel only on pain of appearing hypocritical Leveraging Congress’ Article spending power to distort respondents’ protected speech in this way therefore violates respondents’ First Amendment rights— whatever else might be said about the affiliate’s own First Amendment rights (or asserted lack thereof ) These principles apply with full force to the dispute now before us Respondents and their affiliates receive federal funding to fight HV/ADS overseas What has been at stake in this case from the beginning, then, is protected speech often aimed at audiences abroad Our decision in AOS shielded respondents’ global message from govern- 10 AGENCY FOR NT’L DEVELOPMENT v ALLANCE FOR OPEN SOCETY NT’L, NC BREYER, J, dissenting ment-compelled distortion in the eyes of those foreign audi- ences, as well as listeners here at home Yet in the wake of our ruling, respondents have continued to suffer that exact same First Amendment harm True, respondents’ international mission sometimes re- quires that they convey their message through affiliates in- corporated in far-off countries, rather than registered here at home But so what? Audiences everywhere attribute speech based on whom they perceive to be speaking, not on corporate paperwork they will never see What mattered in AOS was thus how “clearly identified” the affiliates were with respondents, not the fact that the affiliates were incor- porated as separate legal entities And what matters now is once again how “clearly identified” the affiliates are with respondents, not the fact that the affiliates were incor- porated as foreign legal entities The First Amendment question therefore hinges, as it did before, on what an objective observer sees, hears, and un- derstands when respondents speak through their foreign affiliates As to that, not even the Government meaning- fully disputes that respondents and their foreign affiliates are clearly identified with one another Their appearances are the same Their goals are the same Their values are the same Their message is the same Leveraging Congress’ spending power to demand speech from respondents’ for- eign affiliates distorts that shared message—and violates respondents’ First Amendment rights So while respond- ents and their clearly identified foreign affiliates may be technically different entities with respect to such matters as contracts, taxes, and torts, they are constitutionally the same speaker when it comes to the protected speech at is- sue in this case This two-entities-one-speaker principle is an established part of our First Amendment jurisprudence Take To refresh, in that case we upheld a ban on engaging in cer- tain protected speech (lobbying) that the federal tax code Cite as: 591 U S (2020) 11 BREYER, J, dissenting imposed on a nonprofit’s organization because the nonprofit could still speak through a separate organization See Put simply, one speaker (the nonprofit) could act (and speak) through two legally separate entities (the and or- ganizations) Recall also our similar observation in League of Women There we noted that a funding condition’s ban on editorializing would have been constitutional if, in contrast to the law at issue, the statute let noncommercial broad- casters “make known” their “views on matters of public im- portance” by speaking through legally separate “editorial- izing affiliate[s]” 468 US, Once again, we made clear that a single speaker can act (and speak) through two legally separate entities But because the speaker in League of Women was not free to do so, we held that the Government’s funding condition violated the First Amendment –401 and League of Women are far from our only precedents recognizing this firmly entrenched First Amendment principle See Legal Services Corporation v 531 US 533, (observing that organ- izational affiliates may provide “alternative channel[s] for expression” by a single speaker); v Sullivan, 500 US 173, –198 (1991) (similar) We reiterated that rule once again in AOS See US, –7, 9 Thus, in the First Amendment context, the corporate veil is not an iron curtain Just the opposite We attribute speech across corporate lines all the time Rightly so When a funding condition restricts speech, this familiar framework often avoids First Amendment problems by allowing “alternative channel[s]” for speakers to express themselves 531 US, at And when a funding condition compels speech, the same logic leads to a similarly sensible result: The Government may not require you to speak out of both sides of your mouth, 12 AGENCY FOR NT’L DEVELOPMENT v ALLANCE FOR OPEN SOCETY NT’L, NC BREYER, J, dissenting even if each side happens to have been incorporated as a separate legal entity See AOS US, at 9 A contrary approach would have led to a rather surpris- ing result in AOS Assume for a moment that the Policy Requirement simply commanded respondents’ clearly iden- tified affiliates to speak—the kind of “direct regulation of speech” that we said “would plainly violate the First Amendment,” Treating corporate lines as iron- clad would mean that respondents could not object to that direct distortion of their own message Under all the cases just discussed, however, that cannot be right And as dis- cussed below, it is equally wrong under our cases involving speech misattribution B The First Amendment protects speakers from govern- ment compulsion that is likely to cause an audience to mis- take someone else’s message for the speaker’s own views See, eg, 515 US, at 572–573; Pacific Gas & Elec Co v Public Util Comm’n of Cal, 475 US 1, Corporate separation makes no meaningful difference in this speech-misattribution context, either Consider our unanimous decision in n that case, a group called the South Boston Allied War Veterans Council organized a parade 515 US, at 560 The rish- American Gay, Lesbian and Bisexual Group of Boston—a separate group who called themselves “GLB” for short— wanted to participate After the Veterans Council said no, GLB obtained a court order directing the Veterans Council to let GLB march in the parade at 561–562 Recognizing that “every participating unit affects the message conveyed by the parade organizers,” we held in that the order distorted the Veterans Council’s pro- tected speech at 572–573 Because GLB wanted to “carr[y] its own banner” with its own message, and because Cite as: 591 U S (2020) 13 BREYER, J, dissenting onlookers would understand GLB as “contribut[ing] some- thing to” the parade’s “common theme,” the order “essen- tially requir[ed]” the Veterans Council “to alter the expres- sive content of their parade” at 572–573, 576 That violated the First Amendment The First Amendment violation in this case is even more apparent n the Veterans Council had merely “combin[ed] multifarious voices” of disparate groups with- out bothering to “isolate an exact message,” yet the First Amendment protected its message from government- compelled distortion all the same Respondents in this case have done the Veterans Council one better They have carefully constructed a cogent message and mar- shaled their clearly identified foreign affiliates to express it across the globe See at 7–8, 10 Furthermore, in we could only speculate about what GLB’s exact message was and why the Veterans Council did not want to be associated with it See 515 US, at 574–575 But here we know exactly what the challenged message is (“a policy explicitly opposing prostitution and sex trafficking”) and why respondents don’t want to be as- sociated with it (the message, among other things, purport- edly “ ‘stigmatizes one of the very groups whose trust [re- spondents] must earn to conduct effective HV/ADS prevention’ ”) 22 US C ); Brief for Respondents 11 For that reason as well, the First Amendment injury in this case is open, obvious, and unusually well defined True, and our other speech-misattribution cases dealt with a speaker complaining about being forced to af- filiate with someone else’s speech, rather than (as here) their pre-existing affiliate being forced to speak Cf ante, at 6 But that factual distinction makes no constitutional difference From a First Amendment perspective, the latter situation is just as bad or even worse, not better Consider again f, rather than requiring the Vet- erans Council to let GLB march while carrying its banner, 14 AGENCY FOR NT’L DEVELOPMENT v ALLANCE FOR OPEN SOCETY NT’L, NC BREYER, J, dissenting the state court had ordered a previously invited marcher (or worse still, all previously invited marchers) to display GLB’s banner, the Veterans Council would have prevailed all the same By compelling speech from an existing affili- ate (or all of them), that order would have required, even more brazenly, that the Veterans Council “alter the expres- sive content of their parade” in violation of the Veterans Council’s First Amendment rights 515 US, at 572–573 So too if the state court had decreed that GLB’s banner must adorn a horse, oxen, or for that matter R2–D2, a robot—even though those entities lack their own First Amendment rights Whether the transmitter of a speaker’s protected message does (or does not) have its own First Amendment rights is beside the point Cf Wooley, 430 US, at (prohibiting New Hampshire from requiring that the state motto adorn a driver’s car, even though cars do not have First Amendment rights) There is a reason why, until today, we had not confronted a case like the one just described Cf ante, at 6 Requiring someone to host another person’s speech is often a perfectly legitimate thing for the Government to do See, eg, FAR, 547 US, at 65 (holding that the Government may require law schools to host speech from military recruiters); Prune- Yard Shopping Center v Robins, 447 US 74, (holding that the Government may require the owner of a private shopping mall to host speech from politically minded pamphleteers) Even the court order at issue in was an understandable (though unconstitutional) application of a “venerable” civil rights law See 515 US, at 571 But because compelling people to profess a belief they do not hold is almost always unconstitutional, see AOS US, the Government rarely dares try The Government’s well-founded reticence in the past is no reason to bless its boldness at present Bottom line: The critical question here, as in is Cite as: 591 U S (2020) 15 BREYER, J, dissenting simply whether the Government has demanded a profes- sion of belief that will distort the speaker’s message How the Government causes that distortion makes no constitu- tional difference And as explained, enforcing the Policy Re- quirement against respondents’ clearly identified foreign affiliates would plainly distort respondents’ message See at 7–8, 10 That violates respondents’ First Amend- ment rights C So far as am aware, we have never before held that an American speaker forfeits First Amendment protection when it speaks though foreign affiliates to reach audiences overseas t is easy to understand why Many American news networks operate through clearly identified foreign affiliates when speaking abroad Viewers attribute that speech to an American speaker: the network That is the whole point of using clearly identified foreign affiliates For example, CNN speaks to audiences in the Philippines, Brazil, ndonesia, and other countries using foreign affiliates, usually styled as CNN Philippines, CNN Brazil, CNN ndonesia, and so on See CNN Worldwide Fact Sheet (Oct 2019), https:// cnnpressroomblogscnncom/cnn-fact-sheet But does that corporate structure mean that CNN—ie, the American parent organization—has no First Amendment protection against a Government effort to, say, prevent CNN Mexico from covering the fatal shooting of a Mexican child by a U S Border Patrol agent? Cf Hernández v Mesa, 589 U S (2020) (Hernández ) Or to compel CNN Mexico to run a different story, perhaps one produced by Govern- ment personnel, that praises American policy at the border? We should be highly skeptical f the Government com- mandeered CNN’s clearly identified foreign affiliate in these or similar ways, whether by monetary pressure or 16 AGENCY FOR NT’L DEVELOPMENT v ALLANCE FOR OPEN SOCETY NT’L, NC BREYER, J, dissenting some other means, CNN should have constitutional re- course Some critical foreign policy interests might compli- cate the First Amendment calculus—say, a wartime need to keep future battle plans secret But nothing like that is present here And it is difficult to accept the notion that the First Amendment permits the Government to suppress, compel, or otherwise distort any and all American speech transmitted abroad through a clearly identified foreign af- filiate The upshot is: (1) The messages at issue here belong to American speakers; (2) clearly identified foreign affiliates are a critical means of conveying those messages overseas; and (3) enforcing the Policy Requirement against those af- filiates distorts respondents’ own protected speech—and thus violates respondents’ own First Amendment rights The majority justifies its contrary result on three main grounds, two of which it says are “bedrock principles” of American law See ante, at 3–6, 8 do not find these ar- guments persuasive A The first “bedrock principle” on which the majority relies is the supposedly long-settled, across-the-board rule “that foreign citizens outside U S territory do not possess rights under the U S Constitution” Ante, at 3 That sweeping assertion is neither relevant to this case nor correct on the law t is not relevant because, as have said, this case does not concern the constitutional rights of foreign organiza- tions This case concerns the constitutional rights of Amer- ican organizations Every respondent here is—and has al- ways been—American AOS US, ; see also Brief for Petitioners 7, 19 (acknowledging as much) No for- eign entities are party to this case, and respondents have Cite as: 591 U S (2020) 17 BREYER, J, dissenting never claimed that the Policy Requirement violates any- one’s First Amendment rights apart from their own Both the District Court and the Court of Appeals decided the case on that basis The question before us is clear: whether the First Amendment protects Americans when they speak through clearly identified foreign affiliates to reach audi- ences overseas See Whether the foreign affil- iates themselves have their own First Amendment rights is not at issue See Brief for Respondents 36, n 3 Even taken on its own terms, the majority’s blanket as- sertion about the extraterritorial reach of our Constitution does not reflect the current state of the law The idea that foreign citizens abroad never have constitutional rights is not a “bedrock” legal principle At most, one might say that they are unlikely to enjoy very often extraterritorial protec- tion under the Constitution Or one might say that the mat- ter is undecided But this Court has studiously avoided es- tablishing an absolute rule that forecloses that protection in all circumstances n Hernández v Mesa, 582 U S (2017) (Hernández ), for example, we specifically declined to de- cide the “sensitive” question whether, on the facts then be- fore us, a Mexican citizen standing on Mexican soil had Fourth Amendment rights—precisely because the answer to that extraterritoriality question “may have consequences that are far reaching” at (slip op, at 5) Hernández later came to this Court again, and we decided the case on alternative grounds See Hernández 589 U S, at – (slip op, at 19–20) Were the majority’s categorical rule of (non)extraterritoriality etched in stone, we could have disposed of Hernández the first time around in a few short sentences Nor do the cases that the majority cites support an abso- lute rule See ante, at 3 The exhaustive review of our prec- edents that we conducted in v Bush, 553 US 723 pointed to the opposite conclusion n 18 AGENCY FOR NT’L DEVELOPMENT v ALLANCE FOR OPEN SOCETY NT’L, NC BREYER, J, dissenting we rejected the Government’s argument that our decision in Johnson v Eisentrager, 3 US 763 “adopted a formalistic” test “for determining the reach” of constitutional protection to foreign citizens on foreign soil 553 US, at 762 This is to say, we rejected the position that the majority propounds today See ante, at 4, and n (quoting Eisentrager at length) ts “constricted reading” of Eisentrager and our other precedents is not the law See 553 US, at 764; see also, eg, Neuman, Un- derstanding Global Due Process, 23 Geo mmigration L J 365, 400 (2009) (describing our cases as rejecting any abso- lute view) The law, we confirmed in is that constitu- tional “questions of extraterritoriality turn on objective fac- tors and practical concerns” present in a given case, “not formalism” of the sort the majority invokes today 553 US, at 764 Those considerations include the extent of de facto U S Government control (if any) over foreign ter- ritory See ante, at 4 But they also include the nature of the constitutional protection sought, how feasible extending it would be in a given case, and the foreign citizen’s status vis-à-vis the United States, among other pertinent circum- stances that might arise 553 US, at 766; see also United States v Verdugo-Urquidez, 494 US 259, (Ken- nedy, J, concurring) (providing the decisive fifth vote for rejecting a foreign citizen’s claim to constitutional protec- tion on foreign soil outside U S control because “[t]he con- ditions and considerations of this case would make adher- ence to the Fourth Amendment’s warrant requirement impracticable and anomalous” ) Our precedents reject absolutism ndeed, even our most sweep- ing statements about foreign citizens’ (lack of ) constitu- tional rights while outside U S Territory have come with limits See, eg, Landon v Plasencia, 459 US (1982) (noting that “an alien seeking initial admission to” Cite as: 591 U S (2020) 19 BREYER, J, dissenting this country “has no constitutional rights regarding his ap- plication” ); Kleindienst v Mandel, 408 US 753, 762 (similar) There is wisdom in our past restraint Situations where a foreign citizen outside U S Territory might fairly assert constitutional rights are not difficult to imagine Long-term permanent residents are “foreign citizens” Does the Con- stitution therefore allow American officials to assault them at will while “outside U S territory”? Many international students attend college in the United States Does the First Amendment permit a public university to revoke their ad- mission based on an unpopular political stance they took on social media while home for the summer? Foreign citizens who have never set foot in the United States, for that mat- ter, often protest when Presidents travel overseas Does that mean Secret Service agents can, consistent with our Constitution, seriously injure peaceful protestors abroad without any justification? We have never purported to give a single “bedrock” an- swer to these or myriad other extraterritoriality questions that might arise in the future To purport to do so today, in a case where the question is not presented and where the matter is not briefed, is in my view a serious mistake And there is no need to set forth an absolute rule here Respondents have conceded that their foreign affiliates lack First Amendment rights of their own while acting abroad See ante, at 3 f in spite of everything else, the majority considers this point material to its decision, all that need be said is: “We accept respondents’ concession and proceed on that basis” To say so much more “run[s] contrary to the fundamental principal of judicial restraint,” a principle that applies with particular force to constitutional interpreta- tion Washington State Grange v Washington State Repub- lican Party, 552 US 442, ; see also, eg, Lyng v Northwest ndian Cemetery Protective Assn, 485 US 4, 20 AGENCY FOR NT’L DEVELOPMENT v ALLANCE FOR OPEN SOCETY NT’L, NC BREYER, J, dissenting 445 (1988); Three Affiliated Tribes of Fort Berthold Reser- vation v Wold Engineering, P C, 467 US 138, ; United States v Raines, 362 US 17, ; Liverpool, New York & Philadelphia S S Co v Commissioners of Em- igration, 113 US 33, B The majority’s second supposedly “bedrock principle” is that “separately incorporated organizations are separate le- gal units with distinct legal rights and obligations” Ante, at 5 Sometimes true, sometimes not This baseline rule gives way in many contexts, and our First Amendment precedents (including AOS ) refute any suggestion that a workaday principle of corporate law somehow resolves the constitutional issue here in dispute As the majority acknowledges, corporate law itself per- mits courts to pierce or otherwise disregard the corporate veil in a variety of circumstances See ante, at 5 Those narrow exceptions, however, are not the only time the law looks past corporate formalities For instance, we have treated “several nominally separate business entities” as “a single employer” for purposes of federal labor law Radio & Television Technicians v Broadcast Service of Mobile, nc, 380 US 255, Earlier this Term, we reaffirmed that one corporate entity may sometimes in- voke the right of another, legally separate entity to compel arbitration See GE Energy Power Conversion France SAS v Outokumpu Stainless USA, LLC, 590 U S (2020) (slip op, at 4) And these are far from the only rele- vant examples See, eg, American Needle, nc v National Football League, 560 US 183, (observing that, in many antitrust cases, corporate formalities are “not de- terminative”) More to the point, our First Amendment precedents leave no doubt that corporate formalities have little to say about the issue now before us We have made clear again and Cite as: 591 U S (2020) BREYER, J, dissenting again (and again) that speech may be attributed across cor- porate lines in the First Amendment context—including in our previous opinion in this very case See AOS US, at 9 (concluding that speech uttered involuntarily by legally separate affiliates may be attributed to respond- ents if the affiliates are “clearly identified” with respond- ents); League of Women 468 US, (observing that funding conditions that restrict speech can survive constitutional scrutiny if the speaker may “make known its views on matters of public importance through” a legally separate affiliate—and if not, not); (similar); 500 US, at –198 (similar); 531 US, at –547 (similar) And these precedents fur- ther establish that merely requiring speakers to work through affiliates is “not unduly burdensome” and can therefore cure, rather than create, First Amendment con- cerns 461 US, at 545, n 6 Contra, ante, (suggesting that such a requirement would be unconstitu- tional) Small wonder the majority can muster only two context-specific and statute-specific cases—one addressing the Foreign Sovereign mmunities Act, the other involving the Racketeer nfluence and Corrupt Organizations Act— as affirmative support for its conclusion that corporate for- malities somehow control the First Amendment question before us See ante, at 5 and Cedric Kushner Promotions, Ltd v King, 533 US ) The majority also attempts to distinguish the facts before us now from the facts that were before us last time t as- serts that, in contrast to the affiliations we addressed in AOS respondents’ “current affiliations with foreign or- ganizations are their own choice” Ante, There are two problems with this First, the description is not accurate Foreign governments—and increasingly, the U S Govern- ment—often require respondents to work through foreign 22 AGENCY FOR NT’L DEVELOPMENT v ALLANCE FOR OPEN SOCETY NT’L, NC BREYER, J, dissenting affiliates See, eg, App 368, 373–375 Second, even if re- spondents’ associations with foreign affiliates were volun- tary, it would not solve the First Amendment problem n Wooley, for example, it was the drivers’ choice to own a car, but that did not mean they could be compelled to con- vey the Government’s message on their car’s license plate See 430 US, at And in as explained, the Gov- ernment would have violated the parade organizers’ First Amendment rights just the same if it had compelled speech from a previously invited marcher, whether human, ani- mal, or droid See at 13–14 Can the majority really mean to suggest otherwise, simply because the parade or- ganizers’ decision to invite the marcher in the first place was “their own choice”? C The majority also makes two practical arguments, but neither justifies the First Amendment costs of its decision The majority first says that a ruling in respondents’ favor would disrupt American foreign policy by requiring the Government to fund “organizations that may not align with U S values” Ante, at 6 We dismissed this same concern in AOS The Policy Requirement, we explained, does not merely help the Government “enlist the assistance of those with whom it already agrees” AOS US, at 8 t pressures funding recipients “to adopt a particular belief” All that is at stake here, in other words, is whether the Government may leverage the power of the purse to win converts to its cause That bare desire to regulate protected speech is far from any foreign policy interest that could conceivably overcome a speaker’s First Amendment right to convey its message free from government-compelled distortion Cf New York Times Co v United States, 403 US 713 The majority also fears that determining whether Gov- ernment action creates a risk of speech misattribution (and Cite as: 591 U S (2020) 23 BREYER, J, dissenting with it speech distortion) is a “legally unmoored” standard rife with “difficult line-drawing exercises” Ante, But we have drawn just this kind of line many times See, eg, 447 US, 7 (holding that “views expressed by members of the public” in a privately owned shopping mall “will not likely be identified with those of the owner”); 515 US, at 572 (holding that a marcher’s message will likely be attributed to the parade organizer’s, since “every participating unit” in a parade “affects the [overall] message”); FAR, 547 US, at 65 (holding that nothing about having military recruiters on campus “suggests that law schools agree with any speech by recruiters”) should think that the price of making difficult judgment calls is well worth paying to protect First Amendment rights See McCutcheon v Federal Election Comm’n, 572 US 185, (2014); Lloyd Corp v Tanner, 407 US 551, And “on the facts presented in this case,” at any rate, “the answer is clear” at Enforcing the Policy Require- ment violates respondents’ First Amendment rights, just as it did before * * * The Court today concludes that respondents’ foreign af- filiates “do not have a First Amendment right to disregard the Policy Requirement” Ante, at 9 Respondents have never argued otherwise Rather, throughout this litigation they have asserted their own First Amendment right to speak their mind, rather than the Government’s message Here, respondents claim First Amendment protection when they speak through foreign affiliates to address audiences abroad By denying respondents that protection, fear the Court’s decision will seriously impede the countless Ameri- can speakers who communicate overseas in a similar way That weakens the marketplace of ideas at a time when the value of that marketplace for Americans, and for others, reaches well beyond our shores With respect, dissent	2,125
Justice Breyer	majority	false	CIGNA Corp. v. Amara	2011-05-16	null	https://www.courtlistener.com/opinion/216734/cigna-corp-v-amara/	https://www.courtlistener.com/api/rest/v3/clusters/216734/	2,011	2010-043	1	8	0	In 1998, petitioner CIGNA Corporation changed the nature of its basic pension plan for employees. Previously, the plan provided a retiring employee with a defined benefit in the form of an annuity calculated on the basis of his preretirement salary and length of service. The new plan provided most retiring employees with a (lump sum) cash balance calculated on the basis of a defined annual contribution from CIGNA as increased by compound inter est. Because many employees had already earned at least some old-plan benefits, the new plan translated already earned benefits into an opening amount in the employee’s cash balance account. Respondents, acting on behalf of approximately 25,000 beneficiaries of the CIGNA Pension Plan (which is also a petitioner here), challenged CIGNA’s adoption of the new plan. They claimed in part that CIGNA had failed to give them proper notice of changes to their benefits, particu larly because the new plan in certain respects provided 2 CIGNA CORP. v. AMARA Opinion of the Court them with less generous benefits. See Employee Retire ment Income Security Act of 1974 (ERISA) §§102(a), 104(b), 204(h), 88 Stat. 841, 848, 862, as amended, 29 U.S. C. §§1022(a), 1024(b), 1054(h). The District Court agreed that the disclosures made by CIGNA violated its obligations under ERISA. In deter mining relief, the court found that CIGNA’s notice failures had caused the employees “likely harm.” The Court then reformed the new plan and ordered CIGNA to pay benefits accordingly. It found legal authority for doing so in ERISA §502(a)(1)(B), 29 U.S. C. §1132(a)(1)(B) (authoriz ing a plan “participant or beneficiary” to bring a “civil action” to “recover benefits due to him under the terms of his plan”). We agreed to decide whether the District Court applied the correct legal standard, namely, a “likely harm” stan dard, in determining that CIGNA’s notice violations caused its employees sufficient injury to warrant legal relief. To reach that question, we must first consider a more general matter—whether the ERISA section just mentioned (ERISA’s recovery-of-benefits-due provision, §502(a)(1)(B)) authorizes entry of the relief the District Court provided. We conclude that it does not authorize this relief. Nonetheless, we find that a different equity related ERISA provision, to which the District Court also referred, authorizes forms of relief similar to those that the court entered. §502(a)(3), 29 U.S. C. §1132(a)(3). Section 502(a)(3) authorizes “appropriate equitable relief ” for violations of ERISA. Accordingly, the relevant standard of harm will depend upon the equitable theory by which the District Court provides relief. We leave it to the District Court to conduct that analysis in the first in stance, but we identify equitable principles that the court might apply on remand. Cite as: 563 U. S. ____ (2011) 3 Opinion of the Court I Because our decision rests in important part upon the circumstances present here, we shall describe those cir cumstances in some detail. We still simplify in doing so. But the interested reader can find a more thorough de scription in two District Court opinions, which set forth that court’s findings reached after a lengthy trial. See 559 F. Supp. 2d 192 (Conn. 2008); 534 F. Supp. 2d 288 (Conn. 2008). A Under CIGNA’s pre-1998 defined-benefit retirement plan, an employee with at least five years service would receive an annuity annually paying an amount that de pended upon the employee’s salary and length of service. Depending on when the employee had joined CIGNA, the annuity would equal either (1) 2 percent of the employee’s average salary over his final three years with CIGNA, multiplied by the number of years worked (up to 30); or (2) 12⁄3 percent of the employee’s average salary over his final five years with CIGNA, multiplied by the number of years worked (up to 35). Calculated either way, the annuity would approach 60 percent of a longtime employee’s final salary. A well-paid longtime employee, earning, say, $160,000 per year, could receive a retirement annuity paying the employee about $96,000 per year until his death. The plan offered many employees at least one other benefit: They could retire early, at age 55, and re ceive an only-somewhat-reduced annuity. In November 1997, CIGNA sent its employees a news letter announcing that it intended to put in place a new pension plan. The new plan would substitute an “account balance plan” for CIGNA’s pre-existing defined-benefit system. App. 991a (emphasis deleted). The newsletter added that the old plan would end on December 31, 1997, that CIGNA would introduce (and describe) the new plan 4 CIGNA CORP. v. AMARA Opinion of the Court sometime during 1998, and that the new plan would apply retroactively to January 1, 1998. Eleven months later CIGNA filled in the details. Its new plan created an individual retirement account for each employee. (The account consisted of a bookkeeping entry backed by a CIGNA-funded trust.) Each year CIGNA would contribute to the employee’s individual account an amount equal to between 3 percent and 8.5 percent of the employee’s salary, depending upon age, length of service, and certain other factors. The account balance would earn compound interest at a rate equal to the return on 5-year treasury bills plus one-quarter per cent (but no less than 4.5 percent and no greater than 9 percent). Upon retirement the employee would receive the amount then in his or her individual account—in the form of either a lump sum or whatever annuity the lump sum then would buy. As promised, CIGNA would open the accounts and begin to make contributions as of January 1, 1998. But what about the retirement benefits that employees had already earned prior to January 1, 1998? CIGNA promised to make an initial contribution to the individ ual’s account equal to the value of that employee’s already earned benefits. And the new plan set forth a method for calculating that initial contribution. The method con sisted of calculating the amount as of the employee’s (future) retirement date of the annuity to which the em ployee’s salary and length of service already (i.e., as of December 31, 1997) entitled him and then discounting that sum to its present (i.e., January 1, 1998) value. An example will help: Imagine an employee born on January 1, 1966, who joined CIGNA in January 1991 on his 25th birthday, and who (during the five years preced ing the plan changeover) earned an average salary of $100,000 per year. As of January 1, 1998, the old plan would have entitled that employee to an annuity equal to Cite as: 563 U. S. ____ (2011) 5 Opinion of the Court $100,000 times 7 (years then worked) times 12⁄3 percent, or $11,667 per year—when he retired in 2031 at age 65. The 2031 price of an annuity paying $11,667 per year until death depends upon interest rates and mortality assump tions at that time. If we assume the annuity would pay 7 percent until the holder’s death (and we use the mortality assumptions used by the plan, see App. 407a (incorporat ing the mortality table prescribed by Rev. Rul. 95–6, 1995–1 Cum. Bull. 80)), then the 2031 price of such an annuity would be about $120,500. And CIGNA should initially deposit in this individual’s account on January 1, 1998, an amount that will grow to become $120,500, 33 years later, in 2031, when the individual retires. If we assume a 5 percent average interest rate, then that amount presently (i.e., as of January 1, 1998) equals about $24,000. And (with one further mortality-related adjust ment that we shall describe infra, at 6–7) that is the amount, more or less, that the new plan’s transition rules would have required CIGNA initially to deposit. Then CIGNA would make further annual deposits, and all the deposited amounts would earn compound interest. When the employee retired, he would receive the resulting lump sum. The new plan also provided employees a guarantee: An employee would receive upon retirement either (1) the amount to which he or she had become entitled as of January 1, 1998, or (2) the amount then in his or her individual account, whichever was greater. Thus, the employee in our example would receive (in 2031) no less than an annuity paying $11,667 per year for life. B 1 The District Court found that CIGNA’s initial descrip tions of its new plan were significantly incomplete and misled its employees. In November 1997, for example, 6 CIGNA CORP. v. AMARA Opinion of the Court CIGNA sent the employees a newsletter that said the new plan would “significantly enhance” its “retirement pro gram,” would produce “an overall improvement in . . . retirement benefits,” and would provide “the same benefit security” with “steadier benefit growth.” App. 990a, 991a, 993a. CIGNA also told its employees that they would “see the growth in [their] total retirement benefits from CIGNA every year,” id., at 952a, that its initial deposit “represent[ed] the full value of the benefit [they] earned for service before 1998,” Record E–503 (Exh. 98), and that “[o]ne advantage the company will not get from the re tirement program changes is cost savings.” App. 993a. In fact, the new plan saved the company $10 million annually (though CIGNA later said it devoted the savings to other employee benefits). Its initial deposit did not “represen[t] the full value of the benefit” that employees had “earned for service before 1998.” And the plan made a significant number of employees worse off in at least the following specific ways: First, the initial deposit calculation ignored the fact that the old plan offered many CIGNA employees the right to retire early (beginning at age 55) with only somewhat reduced benefits. This right was valuable. For example, as of January 1, 1998, respondent Janice Amara had earned vested age-55 retirement benefits of $1,833 per month, but CIGNA’s initial deposit in her new-plan indi vidual retirement account (ignoring this benefit) would have allowed her at age 55 to buy an annuity benefit of only $900 per month. Second, as we previously indicated but did not explain, supra at 5, the new plan adjusted CIGNA’s initial deposit downward to account for the fact that, unlike the old plan’s lifetime annuity, an employee’s survivors would receive the new plan’s benefits (namely, the amount in the employee’s individual account) even if the employee died before retiring. The downward adjustment consisted of Cite as: 563 U. S. ____ (2011) 7 Opinion of the Court multiplying the otherwise-required deposit by the prob ability that the employee would live until retirement—a 90 percent probability in the example of our 32-year-old, supra, at 4–5. And that meant that CIGNA’s initial de posit in our example—the amount that was supposed to grow to $120,500 by 2031—would be less than $22,000, not $24,000 (the number we computed). The employee, of course, would receive a benefit in return—namely, a form of life insurance. But at least some employees might have preferred the retirement benefit and consequently could reasonably have thought it important to know that the new plan traded away one-tenth of their already-earned benefits for a life insurance policy that they might not have wanted. Third, the new plan shifted the risk of a fall in interest rates from CIGNA to its employees. Under the old plan, CIGNA had to buy a retiring employee an annuity that paid a specified sum irrespective of whether falling inter est rates made it more expensive for CIGNA to pay for that annuity. And falling interest rates also meant that any sum CIGNA set aside to buy that annuity would grow more slowly over time, thereby requiring CIGNA to set aside more money to make any specific sum available at retirement. Under the new plan CIGNA did not have to buy a retiring employee an annuity that paid a specific sum. The employee would simply receive whatever sum his account contained. And falling interest rates meant that the account’s lump sum would earn less money each year after the employee retired. Annuities, for example, would become more expensive (any fixed purchase price paying for less annual income). At the same time falling interest meant that the individual account would grow more slowly over time, leaving the employee with less money at retirement. Of course, interest rates might rise instead of fall, leav ing CIGNA’s employees better off under the new plan. 8 CIGNA CORP. v. AMARA Opinion of the Court But the latter advantage does not cancel out the former disadvantage, for most individuals are risk averse. And that means that most of CIGNA’s employees would have preferred that CIGNA, rather than they, bear these risks. The amounts likely involved are significant. If, in our example, interest rates between 1998 and 2031 averaged 4 percent rather than the 5 percent we assumed, and if in 2031 annuities paid 6 percent rather than the 7 percent we assumed, then CIGNA would have had to make an initial deposit of $35,500 (not $24,000) to assure that employee the $11,667 annual annuity payment to which he had already become entitled. Indeed, that $24,000 that CIGNA would have contributed (leaving aside the life insurance problem) would have provided enough money to buy (in 2031) an annuity that assured the employee an annual payment of only about $8,000 (rather than $11,667). We recognize that the employee in our example (like others) might have continued to work for CIGNA after January 1, 1998; and he would thereby eventually have earned a pension that, by the time of his retirement, was worth far more than $11,667. But that is so because CIGNA made an additional contribution for each year worked after January 1, 1998. If interest rates fell (as they did), it would take the employee several additional years of work simply to catch up (under the new plan) to where he had already been (under the old plan) as of January 1, 1998—a phenomenon known in pension jargon as “wear away,” see 534 F. Supp. 2d, at 303–304 (referring to respondents’ requiring 6 to 10 years to catch up). The District Court found that CIGNA told its employees nothing about any of these features of the new plan— which individually and together made clear that CIGNA’s descriptions of the plan were incomplete and inaccurate. The District Court also found that CIGNA intentionally misled its employees. A focus group and many employees Cite as: 563 U. S. ____ (2011) 9 Opinion of the Court asked CIGNA, for example, to “ ‘[d]isclose details’ ” about the plan, to provide “ ‘individual comparisons,’ ” or to show “ ‘[a]n actual projection for retirement.’ ” Id., at 342. But CIGNA did not do so. Instead (in the words of one inter nal document), it “ ‘focus[ed] on NOT providing employees before and after samples of the Pension Plan changes.’ ” Id., at 343. The District Court concluded, as a matter of law, that CIGNA’s representations (and omissions) about the plan, made between November 1997 (when it announced the plan) and December 1998 (when it put the plan into effect) violated: (a) ERISA §204(h), implemented by Treas. Reg. §1.411(d)–6, 26 CFR §1.411(d)–6 (2000), which (as it ex isted at the relevant time) forbade an amendment of a pension plan that would “provide for a significant reduc tion in the rate of future benefit accrual” unless the plan administrator also sent a “written notice” that provided either the text of the amendment or summarized its likely effects, 29 U.S. C. §1054(h) (2000 ed.) (amended 2001); Treas. Reg. §1.411(d)–6, Q&A–10, 63 Fed. Reg. 68682 (1998); and (b) ERISA §§102(a) and 104(b), which require a plan administrator to provide beneficiaries with summary plan descriptions and with summaries of material modifica tions, “written in a manner calculated to be understood by the average plan participant,” that are “sufficiently accu rate and comprehensive to reasonably apprise such par ticipants and beneficiaries of their rights and obligations under the plan,” 29 U.S. C. §§1022(a), 1024(b) (2006 ed. and Supp. III). 2 The District Court then turned to the remedy. First, the court agreed with CIGNA that only employees whom CIGNA’s disclosure failures had harmed could obtain 10 CIGNA CORP. v. AMARA Opinion of the Court relief. But it did not require each individual member of the relevant CIGNA employee class to show individual injury. Rather, it found (1) that the evidence presented had raised a presumption of “likely harm” suffered by the members of the relevant employee class, and (2) that CIGNA, though free to offer contrary evidence in respect to some or all of those employees, had failed to rebut that presumption. It concluded that this unrebutted showing was sufficient to warrant class-applicable relief. Second, the court noted that §204(h) had been inter preted by the Second Circuit to permit the invalidation of plan amendments not preceded by a proper notice, prior to the 2001 amendment that made this power explicit. 559 F. Supp. 2d, at 207 (citing Frommert v. Conkright, 433 F.3d 254, 263 (2006)); see 29 U.S. C. §1054(h)(6) (2006 ed.) (entitling participants to benefits “without regard to [the] amendment” in case of an “egregious failure”). But the court also thought that granting this relief here would harm, not help, the injured employees. That is because the notice failures all concerned the new plan that took effect in December 1998. The court thought that the notices in respect to the freezing of old-plan benefits, effective December 31, 1997, were valid. To strike the new plan while leaving in effect the frozen old plan would not help CIGNA’s employees. The court considered treating the November 1997 notice as a sham or treating that notice and the later 1998 no tices as part and parcel of a single set of related events. But it pointed out that respondents “ha[d] argued none of these things.” 559 F. Supp. 2d, at 208. And it said that the court would “not make these arguments now on [re spondents’] behalf.” Ibid. Third, the court reformed the terms of the new plan’s guarantee. It erased the portion that assured participants who retired the greater of “A” (that which they had al ready earned as of December 31, 1997, under the old plan, Cite as: 563 U. S. ____ (2011) 11 Opinion of the Court $11,667 in our example) or “B” (that which they would earn via CIGNA’s annual deposits under the new plan, including CIGNA’s initial deposit). And it substituted a provision that would guarantee each employee “A” (that which they had already earned, as of December 31, 1997, under the old plan) plus “B” (that which they would earn via CIGNA’s annual deposits under the new plan, exclud ing CIGNA’s initial deposit). In our example, the District Court’s remedy would no longer force our employee to choose upon retirement either an $11,667 annuity or his new plan benefits (including both CIGNA’s annual depos its and CIGNA’s initial deposit). It would give him an $11,667 annuity plus his new plan benefits (with CIGNA’s annual deposits but without CIGNA’s initial deposit). Fourth, the court “order[ed] and enjoin[ed] the CIGNA Plan to reform its records to reflect that all class members . . . now receive [the just described] ‘A + B’ benefits,” and that it pay appropriate benefits to those class members who had already retired. Id., at 222. Fifth, the court held that ERISA §502(a)(1)(B) provided the legal authority to enter this relief. That provision states that a “civil action may be brought” by a plan “par ticipant or beneficiary . . . to recover benefits due to him under the terms of his plan.” 29 U.S. C. §1132(a)(1)(B). The court wrote that its orders in effect awarded “benefits under the terms of the plan” as reformed. 559 F. Supp. 2d, at 212. At the same time the court considered whether ERISA §502(a)(3) also provided legal authority to enter this relief. That provision states that a civil action may be brought “by a participant, beneficiary, or fiduciary (A) to en join any act or practice which violates any provision of this subchapter or the terms of the plan, or (B) to ob tain other appropriate equitable relief (i) to redress such violations or (ii) to enforce any provisions of this 12 CIGNA CORP. v. AMARA Opinion of the Court subchapter or the terms of the plan.” 29 U.S. C. §1132(a)(3) (emphasis added). The District Court decided not to answer this question because (1) it had just decided that the same relief was available under §502(a)(1)(B), regardless, cf. Varity Corp. v. Howe, 516 U.S. 489, 515 (1996); and (2) the Supreme Court has “issued several opinions . . . that have severely curtailed the kinds of relief that are available under §502(a)(3),” 559 F. Supp. 2d, at 205 (citing Sereboff v. Mid Atlantic Medical Services, Inc., 547 U.S. 356 (2006); Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204 (2002); and Mertens v. Hewitt Associates, 508 U.S. 248 (1993)). 3 The parties cross-appealed the District Court’s judg ment. The Court of Appeals for the Second Circuit issued a brief summary order, rejecting all their claims, and affirming “the judgment of the district court for substan tially the reasons stated” in the District Court’s “well reasoned and scholarly opinions.” 348 Fed. Appx. 627 (2009). The parties filed cross-petitions for writs of certio rari in this Court. We granted the request in CIGNA’s petition to consider whether a showing of “likely harm” is sufficient to entitle plan participants to recover benefits based on faulty disclosures. II CIGNA in the merits briefing raises a preliminary question. Brief for Petitioners 13–20. It argues first and foremost that the statutory provision upon which the District Court rested its orders, namely, the provision for recovery of plan benefits, §502(a)(1)(B), does not in fact authorize the District Court to enter the kind of relief it entered here. And for that reason, CIGNA argues, whether the District Court did or did not use a proper Cite as: 563 U. S. ____ (2011) 13 Opinion of the Court standard for determining harm is beside the point. We believe that this preliminary question is closely enough related to the question presented that we shall consider it at the outset. A The District Court ordered relief in two steps. Step 1: It ordered the terms of the plan reformed (so that they pro vided an “A plus B,” rather than a “greater of A or B” guarantee). Step 2: It ordered the plan administrator (which it found to be CIGNA) to enforce the plan as re formed. One can fairly describe step 2 as consistent with §502(a)(1)(B), for that provision grants a participant the right to bring a civil action to “recover benefits due . . . under the terms of his plan.” 29 U.S. C. §1132(a)(1)(B). And step 2 orders recovery of the benefits provided by the “terms of [the] plan” as reformed. But what about step 1? Where does §502(a)(1)(B) grant a court the power to change the terms of the plan as they previously existed? The statutory language speaks of “enforc[ing]” the “terms of the plan,” not of changing them. 29 U.S. C. §1132(a)(l)(B) (emphasis added). The provision allows a court to look outside the plan’s written language in deciding what those terms are, i.e., what the language means. See UNUM Life Ins. Co. of America v. Ward, 526 U.S. 358, 377–379 (1999) (permitting the insurance terms of an ERISA-governed plan to be interpreted in light of state insurance rules). But we have found nothing sug gesting that the provision authorizes a court to alter those terms, at least not in present circumstances, where that change, akin to the reform of a contract, seems less like the simple enforcement of a contract as written and more like an equitable remedy. See infra, at 18. Nor can we accept the Solicitor General’s alternative rationale seeking to justify the use of this provision. The Solicitor General says that the District Court did enforce 14 CIGNA CORP. v. AMARA Opinion of the Court the plan’s terms as written, adding that the “plan” in cludes the disclosures that constituted the summary plan descriptions. In other words, in the view of the Solicitor General, the terms of the summaries are terms of the plan. Even if the District Court had viewed the summaries as plan “terms” (which it did not, see supra, at 10–11), however, we cannot agree that the terms of statutorily required plan summaries (or summaries of plan modifica tions) necessarily may be enforced (under §502(a)(1)(B)) as the terms of the plan itself. For one thing, it is difficult to square the Solicitor General’s reading of the statute with ERISA §102(a), the provision that obliges plan adminis trators to furnish summary plan descriptions. The syntax of that provision, requiring that participants and benefici aries be advised of their rights and obligations “under the plan,” suggests that the information about the plan pro vided by those disclosures is not itself part of the plan. See 29 U.S. C. §1022(a). Nothing in §502(a)(1)(B) (or, as far as we can tell, anywhere else) suggests the contrary. Nor do we find it easy to square the Solicitor General’s reading with the statute’s division of authority between a plan’s sponsor and the plan’s administrator. The plan’s sponsor (e.g., the employer), like a trust’s settlor, creates the basic terms and conditions of the plan, executes a written instrument containing those terms and conditions, and provides in that instrument “a procedure” for making amendments. §402, 29 U.S. C. §1102. The plan’s admin istrator, a trustee-like fiduciary, manages the plan, follows its terms in doing so, and provides participants with the summary documents that describe the plan (and modifica tions) in readily understandable form. §§3(21)(A), 101(a), 102, 104, 29 U.S. C. §§1002(21)(A), 1021(a), 1022, 1024 (2006 ed. and Supp. III). Here, the District Court found that the same entity, CIGNA, filled both roles. See 534 F. Supp. 2d, at 331. But that is not always the case. Cite as: 563 U. S. ____ (2011) 15 Opinion of the Court Regardless, we have found that ERISA carefully distin guishes these roles. See, e.g., Varity Corp., 516 U.S., at 498. And we have no reason to believe that the statute intends to mix the responsibilities by giving the adminis trator the power to set plan terms indirectly by including them in the summary plan descriptions. See Curtiss- Wright Corp. v. Schoonejongen, 514 U.S. 73, 81–85 (1995). Finally, we find it difficult to reconcile the Solicitor General’s interpretation with the basic summary plan description objective: clear, simple communication. See §§2(a), 102(a), 29 U.S. C. §1001(a), 1022(a) (2006 ed.). To make the language of a plan summary legally binding could well lead plan administrators to sacrifice simplicity and comprehensibility in order to describe plan terms in the language of lawyers. Consider the difference between a will and the summary of a will or between a property deed and its summary. Consider, too, the length of Part I of this opinion, and then consider how much longer Part I would have to be if we had to include all the qualifications and nuances that a plan drafter might have found impor tant and feared to omit lest they lose all legal significance. The District Court’s opinions take up 109 pages of the Federal Supplement. None of this is to say that plan administrators can avoid providing complete and accurate summaries of plan terms in the manner required by ERISA and its implementing regulations. But we fear that the Solicitor General’s rule might bring about com plexity that would defeat the fundamental purpose of the summaries. For these reasons taken together we conclude that the summary documents, important as they are, provide communication with beneficiaries about the plan, but that their statements do not themselves constitute the terms of the plan for purposes of §502(a)(1)(B). We also conclude that the District Court could not find authority in that section to reform CIGNA’s plan as written. 16 CIGNA CORP. v. AMARA Opinion of the Court B If §502(a)(1)(B) does not authorize entry of the relief here at issue, what about nearby §502(a)(3)? That provi sion allows a participant, beneficiary, or fiduciary “to obtain other appropriate equitable relief ” to redress viola tions of (here relevant) parts of ERISA “or the terms of the plan.” 29 U.S. C. §1132(a)(3) (emphasis added). The District Court strongly implied, but did not directly hold, that it would base its relief upon this subsection were it not for (1) the fact that the preceding “plan benefits due” provision, §502(a)(1)(B), provided sufficient authority; and (2) certain cases from this Court that narrowed the appli cation of the term “appropriate equitable relief,” see, e.g., Mertens, 508 U.S. 248; Great-West, 534 U.S. 204. Our holding in Part II–A, supra, removes the District Court’s first obstacle. And given the likelihood that, on remand, the District Court will turn to and rely upon this alterna tive subsection, we consider the court’s second concern. We find that concern misplaced. We have interpreted the term “appropriate equitable relief ” in §502(a)(3) as referring to “ ‘those categories of relief ’ ” that, traditionally speaking (i.e., prior to the merger of law and equity) “ ‘were typically available in equity.’ ” Sereboff, 547 U.S., at 361 (quoting Mertens, 508 U.S., at 256). In Mertens, we applied this principle to a claim seeking money damages brought by a beneficiary against a private firm that provided a trustee with actuar ial services. We found that the plaintiff sought “nothing other than compensatory damages” against a nonfiduci ary. Id., at 253, 255 (emphasis deleted). And we held that such a claim, traditionally speaking, was legal, not equi table, in nature. Id., at 255. In Great-West, we considered a claim brought by a fidu ciary against a tort-award-winning beneficiary seeking monetary reimbursement for medical outlays that the plan had previously made on the beneficiary’s behalf. We noted Cite as: 563 U. S. ____ (2011) 17 Opinion of the Court that the fiduciary sought to obtain a lien attaching to (or a constructive trust imposed upon) money that the benefici ary had received from the tort-case defendant. But we noted that the money in question was not the “particular” money that the tort defendant had paid. And, tradition ally speaking, relief that sought a lien or a constructive trust was legal relief, not equitable relief, unless the funds in question were “particular funds or property in the defendant’s possession.” 534 U.S., at 213 (emphasis added). The case before us concerns a suit by a beneficiary against a plan fiduciary (whom ERISA typically treats as a trustee) about the terms of a plan (which ERISA typi cally treats as a trust). See LaRue v. DeWolff, Boberg & Associates, Inc., 552 U.S. 248, 253, n. 4 (2008); Varity Corp., 516 U.S., at 496–497. It is the kind of lawsuit that, before the merger of law and equity, respondents could have brought only in a court of equity, not a court of law. 4 A. Scott, W. Fratcher, & M. Ascher, Trusts §24.1, p. 1654 (5th ed. 2007) (hereinafter Scott & Ascher) (“Trusts are, and always have been, the bailiwick of the courts of eq uity”); Duvall v. Craig, 2 Wheat. 45, 56 (1817) (a trustee was “only suable in equity”). With the exception of the relief now provided by §502(a)(1)(B), Restatement (Second) of Trusts §§198(1)–(2) (1957) (hereinafter Second Restatement); 4 Scott & Ascher §24.2.1, the remedies available to those courts of equity were traditionally considered equitable remedies, see Second Restatement §199; J. Adams, Doctrine of Equity: A Commentary on the Law as Administered by the Court of Chancery 61 (7th Am. ed. 1881) (hereinafter Adams); 4 Scott & Ascher §24.2. The District Court’s affirmative and negative injunc tions obviously fall within this category. Mertens, supra, at 256 (identifying injunctions, mandamus, and restitution as equitable relief ). And other relief ordered by the Dis 18 CIGNA CORP. v. AMARA Opinion of the Court trict Court resembles forms of traditional equitable relief. That is because equity chancellors developed a host of other “distinctively equitable” remedies—remedies that were “fitted to the nature of the primary right” they were intended to protect. 1 S. Symons, Pomeroy’s Equity Juris prudence §108, pp. 139–140 (5th ed. 1941) (hereinafter Pomeroy). See generally 1 J. Story, Commentaries on Equity Jurisprudence §692 (12th ed. 1877) (hereinafter Story). Indeed, a maxim of equity states that “[e]quity suffers not a right to be without a remedy.” R. Francis, Maxims of Equity 29 (1st Am. ed. 1823). And the relief entered here, insofar as it does not consist of injunctive relief, closely resembles three other traditional equitable remedies. First, what the District Court did here may be regarded as the reformation of the terms of the plan, in order to remedy the false or misleading information CIGNA pro vided. The power to reform contracts (as contrasted with the power to enforce contracts as written) is a traditional power of an equity court, not a court of law, and was used to prevent fraud. See Baltzer v. Raleigh & Augusta R. Co., 115 U.S. 634, 645 (1885) (“[I]t is well settled that equity would reform the contract, and enforce it, as reformed, if the mistake or fraud were shown”); Hearne v. Marine Ins. Co., 20 Wall. 488, 490 (1874) (“The reformation of written contracts for fraud or mistake is an ordinary head of eq uity jurisdiction”); Bradford v. Union Bank of Tenn., 13 How. 57, 66 (1852); J. Eaton, Handbook of Equity Juris prudence §306, p. 618 (1901) (hereinafter Eaton) (courts of common law could only void or enforce, but not reform, a contract); 4 Pomeroy §1375, at 1000 (reformation “chiefly occasioned by fraud or mistake,” which were themselves concerns of equity courts); 1 Story §§152–154; see also 4 Pomeroy §1375, at 999 (equity often considered refor mation a “preparatory step” that “establishes the real contract”). Cite as: 563 U. S. ____ (2011) 19 Opinion of the Court Second, the District Court’s remedy essentially held CIGNA to what it had promised, namely, that the new plan would not take from its employees benefits they had already accrued. This aspect of the remedy resembles estoppel, a traditional equitable remedy. See, e.g., E. Merwin, Principles of Equity and Equity Pleading §910 (H. Merwin ed. 1895); 3 Pomeroy §804. Equitable estoppel “operates to place the person entitled to its benefit in the same position he would have been in had the representa tions been true.” Eaton §62, at 176. And, as Justice Story long ago pointed out, equitable estoppel “forms a very essential element in . . . fair dealing, and rebuke of all fraudulent misrepresentation, which it is the boast of courts of equity constantly to promote.” 2 Story §1533, at 776. Third, the District Court injunctions require the plan administrator to pay to already retired beneficiaries money owed them under the plan as reformed. But the fact that this relief takes the form of a money payment does not remove it from the category of traditionally equi table relief. Equity courts possessed the power to provide relief in the form of monetary “compensation” for a loss resulting from a trustee’s breach of duty, or to prevent the trustee’s unjust enrichment. Restatement (Third) of Trusts §95, and Comment a (Tent. Draft No. 5, Mar. 2, 2009) (hereinafter Third Restatement); Eaton §§211–212, at 440. Indeed, prior to the merger of law and equity this kind of monetary remedy against a trustee, sometimes called a “surcharge,” was “exclusively equitable.” Princess Lida of Thurn and Taxis v. Thompson, 305 U.S. 456, 464 (1939); Third Restatement §95, and Comment a; G. Bogert & G. Bogert, Trusts and Trustees §862 (rev. 2d ed. 1995) (hereinafter Bogert); 4 Scott & Ascher §§24.2, 24.9, at 1659–1660, 1686; Second Restatement §197; see also Manhattan Bank of Memphis v. Walker, 130 U.S. 267, 271 (1889) (“The suit is plainly one of equitable cognizance, the 20 CIGNA CORP. v. AMARA Opinion of the Court bill being filed to charge the defendant, as a trustee, for a breach of trust”); 1 J. Perry, A Treatise on the Law of Trusts and Trustees §17, p. 13 (2d ed. 1874) (common-law attempts “to punish trustees for a breach of trust in dam ages, . . . w[ere] soon abandoned”). The surcharge remedy extended to a breach of trust committed by a fiduciary encompassing any violation of a duty imposed upon that fiduciary. See Second Restate ment §201; Adams 59; 4 Pomeroy §1079; 2 Story §§1261, 1268. Thus, insofar as an award of make-whole relief is concerned, the fact that the defendant in this case, unlike the defendant in Mertens, is analogous to a trustee makes a critical difference. See 508 U.S., at 262–263. In sum, contrary to the District Court’s fears, the types of reme dies the court entered here fall within the scope of the term “appropriate equitable relief ” in §502(a)(3). III Section 502(a)(3) invokes the equitable powers of the District Court. We cannot know with certainty which remedy the District Court understood itself to be impos ing, nor whether the District Court will find it appropriate to exercise its discretion under §502(a)(3) to impose that remedy on remand. We need not decide which remedies are appropriate on the facts of this case in order to resolve the parties’ dispute as to the appropriate legal standard in determining whether members of the relevant employee class were injured. The relevant substantive provisions of ERISA do not set forth any particular standard for determining harm. They simply require the plan administrator to write and to distribute written notices that are “sufficiently accurate and comprehensive to reasonably apprise” plan partici pants and beneficiaries of “their rights and obligations under the plan.” §102(a); see also §§104(b), 204(h). Nor can we find a definite standard in the ERISA provision, Cite as: 563 U. S. ____ (2011) 21 Opinion of the Court §502(a)(3) (which authorizes the court to enter “appropri ate equitable relief ” to redress ERISA “violations”). Hence any requirement of harm must come from the law of equity. Looking to the law of equity, there is no general princi ple that “detrimental reliance” must be proved before a remedy is decreed. To the extent any such requirement arises, it is because the specific remedy being contem plated imposes such a requirement. Thus, as CIGNA points out, when equity courts used the remedy of estop pel, they insisted upon a showing akin to detrimental reliance, i.e., that the defendant’s statement “in truth, influenced the conduct of ” the plaintiff, causing “preju dic[e].” Eaton §61, at 175; see 3 Pomeroy §805. Accord ingly, when a court exercises its authority under §502(a)(3) to impose a remedy equivalent to estoppel, a showing of detrimental reliance must be made. But this showing is not always necessary for other equitable remedies. Equity courts, for example, would reform contracts to reflect the mutual understanding of the contracting parties where “fraudulent suppression[s], omission[s], or insertion[s],” 1 Story §154, at 149, “mate rial[ly] . . . affect[ed]” the “substance” of the contract, even if the “complaining part[y]” was negligent in not realizing its mistake, as long as its negligence did not fall below a standard of “reasonable prudence” and violate a legal duty. 3 Pomeroy §§856, 856b, at 334, 340–341; see Balt zer, 115 U.S., at 645; Eaton §307(b). Nor did equity courts insist upon a showing of detrimen tal reliance in cases where they ordered “surcharge.” Rather, they simply ordered a trust or beneficiary made whole following a trustee’s breach of trust. In such in stances equity courts would “mold the relief to protect the rights of the beneficiary according to the situation in volved.” Bogert §861, at 4. This flexible approach belies a strict requirement of “detrimental reliance.” 22 CIGNA CORP. v. AMARA Opinion of the Court To be sure, just as a court of equity would not surcharge a trustee for a nonexistent harm, 4 Scott & Ascher §24.9, a fiduciary can be surcharged under §502(a)(3) only upon a showing of actual harm—proved (under the default rule for civil cases) by a preponderance of the evidence. That actual harm may sometimes consist of detrimental reli ance, but it might also come from the loss of a right pro tected by ERISA or its trust-law antecedents. In the present case, it is not difficult to imagine how the failure to provide proper summary information, in violation of the statute, injured employees even if they did not themselves act in reliance on summary documents—which they might not themselves have seen—for they may have thought fellow employees, or informal workplace discussion, would have let them know if, say, plan changes would likely prove harmful. We doubt that Congress would have wanted to bar those employees from relief. The upshot is that we can agree with CIGNA only to a limited extent. We believe that, to obtain relief by sur charge for violations of §§102(a) and 104(b), a plan partici pant or beneficiary must show that the violation injured him or her. But to do so, he or she need only show harm and causation. Although it is not always necessary to meet the more rigorous standard implicit in the words “detrimental reliance,” actual harm must be shown. We are not asked to reassess the evidence. And we are not asked about the other prerequisites for relief. We are asked about the standard of prejudice. And we conclude that the standard of prejudice must be borrowed from equitable principles, as modified by the obligations and injuries identified by ERISA itself. Information-related circumstances, violations, and injuries are potentially too various in nature to insist that harm must always meet that more vigorous “detrimental harm” standard when equity imposed no such strict requirement. Cite as: 563 U. S. ____ (2011) 23 Opinion of the Court IV We have premised our discussion in Part III on the need for the District Court to revisit its determination of an appropriate remedy for the violations of ERISA it identi fied. Whether or not the general principles we have dis cussed above are properly applicable in this case is for it or the Court of Appeals to determine in the first instance. Because the District Court has not determined if an ap propriate remedy may be imposed under §502(a)(3), we must vacate the judgment below and remand this case for further proceedings consistent with this opinion. It is so ordered. JUSTICE SOTOMAYOR took no part in the consideration or decision of this case. Cite as: 563 U. S. ____ (2011) 1 SCALIA, J., concurring in judgment SUPREME COURT OF THE UNITED STATES _________________ No. 09–804 _________________ CIGNA CORPORATION, ET AL., PETITIONERS v. JANICE C. AMARA, ET AL., INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT [May 16, 2011] JUSTICE SCALIA, with whom JUSTICE THOMAS joins, concurring in the judgment.	In 1998, petitioner CIGN Corporation changed the nature of its basic pension plan for employees. Previously, the plan provided a retiring employee with a defined benefit in the form of an annuity calculated on the basis of his preretirement salary and length of service. The new plan provided most retiring employees with a (lump sum) cash balance calculated on the basis of a defined annual contribution from CIGN as increased by compound inter est. Because many employees had already earned at least some old-plan benefits, the new plan translated already earned benefits into an opening amount in the employee’s cash balance account. Respondents, acting on behalf of approximately 25,000 beneficiaries of the CIGN Pension Plan (which is also a petitioner here), challenged CIGN’s adoption of the new plan. They claimed in part that CIGN had failed to give them proper notice of changes to their benefits, particu larly because the new plan in certain respects provided 2 CIGN CORP. v. MR Opinion of the Court them with less generous benefits. See Employee Retire ment Income Security ct of 1974 (ERIS) 104(b), 204(h), 848, 862, as amended, 29 U.S. C. 1024(b), 1054(h). The District Court agreed that the disclosures made by CIGN violated its obligations under ERIS. In deter mining relief, the court found that CIGN’s notice failures had caused the employees “likely harm.” The Court then reformed the new plan and ordered CIGN to pay benefits accordingly. It found legal authority for doing so in ERIS 29 U.S. C. (authoriz ing a plan “participant or beneficiary” to bring a “civil action” to “recover benefits due to him under the terms of his plan”). We agreed to decide whether the District Court applied the correct legal standard, namely, a “likely harm” stan dard, in determining that CIGN’s notice violations caused its employees sufficient injury to warrant legal relief. To reach that question, we must first consider a more general matter—whether the ERIS section just mentioned (ERIS’s recovery-of-benefits-due provision, authorizes entry of the relief the District Court provided. We conclude that it does not authorize this relief. Nonetheless, we find that a different equity related ERIS provision, to which the District Court also referred, authorizes forms of relief similar to those that the court entered. 29 U.S. C. Section 502(a)(3) authorizes “appropriate equitable relief ” for violations of ERIS. ccordingly, the relevant standard of harm will depend upon the equitable theory by which the District Court provides relief. We leave it to the District Court to conduct that analysis in the first in stance, but we identify equitable principles that the court might apply on remand. Cite as: 3 U. S. (2011) 3 Opinion of the Court I Because our decision rests in important part upon the circumstances present here, we shall describe those cir cumstances in some detail. We still simplify in doing so. But the interested reader can find a more thorough de scription in two District Court opinions, which set forth that court’s findings reached after a lengthy trial. See 559 F. Supp. 2d 192 ; Under CIGN’s pre-1998 defined-benefit retirement plan, an employee with at least five years service would receive an annuity annually paying an amount that de pended upon the employee’s salary and length of service. Depending on when the employee had joined CIGN, the annuity would equal either (1) 2 percent of the employee’s average salary over his final three years with CIGN, multiplied by the number of years worked (up to 30); or (2) 12⁄3 percent of the employee’s average salary over his final five years with CIGN, multiplied by the number of years worked (up to 35). Calculated either way, the annuity would approach 60 percent of a longtime employee’s final salary. well-paid longtime employee, earning, say, $160,000 per year, could receive a retirement annuity paying the employee about $96,000 per year until his death. The plan offered many employees at least one other benefit: They could retire early, at age 55, and re ceive an only-somewhat-reduced annuity. In November 1997, CIGN sent its employees a news letter announcing that it intended to put in place a new pension plan. The new plan would substitute an “account balance plan” for CIGN’s pre-existing defined-benefit system. pp. 991a The newsletter added that the old plan would end on December 31, 1997, that CIGN would introduce (and describe) the new plan 4 CIGN CORP. v. MR Opinion of the Court sometime during 1998, and that the new plan would apply retroactively to January 1, 1998. Eleven months later CIGN filled in the details. Its new plan created an individual retirement account for each employee. (The account consisted of a bookkeeping entry backed by a CIGN-funded trust.) Each year CIGN would contribute to the employee’s individual account an amount equal to between 3 percent and 8.5 percent of the employee’s salary, depending upon age, length of service, and certain other factors. The account balance would earn compound interest at a rate equal to the return on 5-year treasury bills plus one-quarter per cent (but no less than 4.5 percent and no greater than 9 percent). Upon retirement the employee would receive the amount then in his or her individual account—in the form of either a lump sum or whatever annuity the lump sum then would buy. s promised, CIGN would open the accounts and begin to make contributions as of January 1, 1998. But what about the retirement benefits that employees had already earned prior to January 1, 1998? CIGN promised to make an initial contribution to the individ ual’s account equal to the value of that employee’s already earned benefits. nd the new plan set forth a method for calculating that initial contribution. The method con sisted of calculating the amount as of the employee’s (future) retirement date of the annuity to which the em ployee’s salary and length of service already (i.e., as of December 31, 1997) entitled him and then discounting that sum to its present (i.e., January 1, 1998) value. n example will help: Imagine an employee born on January 1, 1966, who joined CIGN in January 1991 on his 25th birthday, and who (during the five years preced ing the plan changeover) earned an average salary of $100,000 per year. s of January 1, 1998, the old plan would have entitled that employee to an annuity equal to Cite as: 3 U. S. (2011) 5 Opinion of the Court $100,000 times 7 (years then worked) times 12⁄3 percent, or $11,667 per year—when he retired in 2031 at age 65. The 2031 price of an annuity paying $11,667 per year until death depends upon interest rates and mortality assump tions at that time. If we assume the annuity would pay 7 percent until the holder’s death (and we use the mortality assumptions used by the plan, see pp. 407a (incorporat ing the mortality table prescribed by Rev. Rul. 95–6, 1995–1 Cum. Bull. 80)), then the 2031 price of such an annuity would be about $120,500. nd CIGN should initially deposit in this individual’s account on January 1, 1998, an amount that will grow to become $120,500, 33 years later, in 2031, when the individual retires. If we assume a 5 percent average interest rate, then that amount presently (i.e., as of January 1, 1998) equals about $24,000. nd (with one further mortality-related adjust ment that we shall describe infra, at 6–7) that is the amount, more or less, that the new plan’s transition rules would have required CIGN initially to deposit. Then CIGN would make further annual deposits, and all the deposited amounts would earn compound interest. When the employee retired, he would receive the resulting lump sum. The new plan also provided employees a guarantee: n employee would receive upon retirement either (1) the amount to which he or she had become entitled as of January 1, 1998, or (2) the amount then in his or her individual account, whichever was greater. Thus, the employee in our example would receive (in 2031) no less than an annuity paying $11,667 per year for life. B 1 The District Court found that CIGN’s initial descrip tions of its new plan were significantly incomplete and misled its employees. In November 1997, for example, 6 CIGN CORP. v. MR Opinion of the Court CIGN sent the employees a newsletter that said the new plan would “significantly enhance” its “retirement pro gram,” would produce “an overall improvement in retirement benefits,” and would provide “the same benefit security” with “steadier benefit growth.” pp. 990a, 991a, 993a. CIGN also told its employees that they would “see the growth in [their] total retirement benefits from CIGN every year,” at 952a, that its initial deposit “represent[ed] the full value of the benefit [they] earned for service before 1998,” Record E–503 (Exh. 98), and that “[o]ne advantage the company will not get from the re tirement program changes is cost savings.” pp. 993a. In fact, the new plan saved the company $10 million annually (though CIGN later said it devoted the savings to other employee benefits). Its initial deposit did not “represen[t] the full value of the benefit” that employees had “earned for service before 1998.” nd the plan made a significant number of employees worse off in at least the following specific ways: First, the initial deposit calculation ignored the fact that the old plan offered many CIGN employees the right to retire early (beginning at age 55) with only somewhat reduced benefits. This right was valuable. For example, as of January 1, 1998, respondent Janice mara had earned vested age-55 retirement benefits of $1,833 per month, but CIGN’s initial deposit in her new-plan indi vidual retirement account (ignoring this benefit) would have allowed her at age 55 to buy an annuity benefit of only $900 per month. Second, as we previously indicated but did not explain, the new plan adjusted CIGN’s initial deposit downward to account for the fact that, unlike the old plan’s lifetime annuity, an employee’s survivors would receive the new plan’s benefits (namely, the amount in the employee’s individual account) even if the employee died before retiring. The downward adjustment consisted of Cite as: 3 U. S. (2011) 7 Opinion of the Court multiplying the otherwise-required deposit by the prob ability that the employee would live until retirement—a 90 percent probability in the example of our 32-year-old, at 4–5. nd that meant that CIGN’s initial de posit in our example—the amount that was supposed to grow to $120,500 by 2031—would be less than $22,000, not $24,000 (the number we computed). The employee, of course, would receive a benefit in return—namely, a form of life insurance. But at least some employees might have preferred the retirement benefit and consequently could reasonably have thought it important to know that the new plan traded away one-tenth of their already-earned benefits for a life insurance policy that they might not have wanted. Third, the new plan shifted the risk of a fall in interest rates from CIGN to its employees. Under the old plan, CIGN had to buy a retiring employee an annuity that paid a specified sum irrespective of whether falling inter est rates made it more expensive for CIGN to pay for that annuity. nd falling interest rates also meant that any sum CIGN set aside to buy that annuity would grow more slowly over time, thereby requiring CIGN to set aside more money to make any specific sum available at retirement. Under the new plan CIGN did not have to buy a retiring employee an annuity that paid a specific sum. The employee would simply receive whatever sum his account contained. nd falling interest rates meant that the account’s lump sum would earn less money each year after the employee retired. nnuities, for example, would become more expensive (any fixed purchase price paying for less annual income). t the same time falling interest meant that the individual account would grow more slowly over time, leaving the employee with less money at retirement. Of course, interest rates might rise instead of fall, leav ing CIGN’s employees better off under the new plan. 8 CIGN CORP. v. MR Opinion of the Court But the latter advantage does not cancel out the former disadvantage, for most individuals are risk averse. nd that means that most of CIGN’s employees would have preferred that CIGN, rather than they, bear these risks. The amounts likely involved are significant. If, in our example, interest rates between 1998 and 2031 averaged 4 percent rather than the 5 percent we assumed, and if in 2031 annuities paid 6 percent rather than the 7 percent we assumed, then CIGN would have had to make an initial deposit of $35,500 (not $24,000) to assure that employee the $11,667 annual annuity payment to which he had already become entitled. Indeed, that $24,000 that CIGN would have contributed (leaving aside the life insurance problem) would have provided enough money to buy (in 2031) an annuity that assured the employee an annual payment of only about $8,000 (rather than $11,667). We recognize that the employee in our example (like others) might have continued to work for CIGN after January 1, 1998; and he would thereby eventually have earned a pension that, by the time of his retirement, was worth far more than $11,667. But that is so because CIGN made an additional contribution for each year worked after January 1, 1998. If interest rates fell (as they did), it would take the employee several additional years of work simply to catch up (under the new plan) to where he had already been (under the old plan) as of January 1, 1998—a phenomenon known in pension jargon as “wear away,” see –304 (referring to respondents’ requiring 6 to 10 years to catch up). The District Court found that CIGN told its employees nothing about any of these features of the new plan— which individually and together made clear that CIGN’s descriptions of the plan were incomplete and inaccurate. The District Court also found that CIGN intentionally misled its employees. focus group and many employees Cite as: 3 U. S. (2011) 9 Opinion of the Court asked CIGN, for example, to “ ‘[d]isclose details’ ” about the plan, to provide “ ‘individual comparisons,’ ” or to show “ ‘[a]n actual projection for retirement.’ ” But CIGN did not do so. Instead (in the words of one inter nal document), it “ ‘focus[ed] on NOT providing employees before and after samples of the Pension Plan changes.’ ” The District Court concluded, as a matter of law, that CIGN’s representations (and omissions) about the plan, made between November 1997 (when it announced the plan) and December 1998 (when it put the plan into effect) violated: (a) ERIS implemented by Treas. Reg. (d)–6 (2000), which (as it ex isted at the relevant time) forbade an amendment of a pension plan that would “provide for a significant reduc tion in the rate of future benefit accrual” unless the plan administrator also sent a “written notice” that provided either the text of the amendment or summarized its likely effects, 29 U.S. C. (2000 ed.) (amended 2001); Treas. Reg. Q&–10, (1998); and (b) ERIS and 104(b), which require a plan administrator to provide beneficiaries with summary plan descriptions and with summaries of material modifica tions, “written in a manner calculated to be understood by the average plan participant,” that are “sufficiently accu rate and comprehensive to reasonably apprise such par ticipants and beneficiaries of their rights and obligations under the plan,” 29 U.S. C. 1024(b) (2006 ed. and Supp. III). 2 The District Court then turned to the remedy. First, the court agreed with CIGN that only employees whom CIGN’s disclosure failures had harmed could obtain 10 CIGN CORP. v. MR Opinion of the Court relief. But it did not require each individual member of the relevant CIGN employee class to show individual injury. Rather, it found (1) that the evidence presented had raised a presumption of “likely harm” suffered by the members of the relevant employee class, and (2) that CIGN, though free to offer contrary evidence in respect to some or all of those employees, had failed to rebut that presumption. It concluded that this unrebutted showing was sufficient to warrant class-applicable relief. Second, the court noted that had been inter preted by the Second Circuit to permit the invalidation of plan amendments not preceded by a proper notice, prior to the 2001 amendment that made this power explicit. 559 F. Supp. 2d, at 207 ); see 29 U.S. C. (6) (2006 ed.) (entitling participants to benefits “without regard to [the] amendment” in case of an “egregious failure”). But the court also thought that granting this relief here would harm, not help, the injured employees. That is because the notice failures all concerned the new plan that took effect in December 1998. The court thought that the notices in respect to the freezing of old-plan benefits, effective December 31, 1997, were valid. To strike the new plan while leaving in effect the frozen old plan would not help CIGN’s employees. The court considered treating the November 1997 notice as a sham or treating that notice and the later 1998 no tices as part and parcel of a single set of related events. But it pointed out that respondents “ha[d] argued none of these things.” nd it said that the court would “not make these arguments now on [re spondents’] behalf.” Third, the court reformed the terms of the new plan’s guarantee. It erased the portion that assured participants who retired the greater of “” (that which they had al ready earned as of December 31, 1997, under the old plan, Cite as: 3 U. S. (2011) 11 Opinion of the Court $11,667 in our example) or “B” (that which they would earn via CIGN’s annual deposits under the new plan, including CIGN’s initial deposit). nd it substituted a provision that would guarantee each employee “” (that which they had already earned, as of December 31, 1997, under the old plan) plus “B” (that which they would earn via CIGN’s annual deposits under the new plan, exclud ing CIGN’s initial deposit). In our example, the District Court’s remedy would no longer force our employee to choose upon retirement either an $11,667 annuity or his new plan benefits (including both CIGN’s annual depos its and CIGN’s initial deposit). It would give him an $11,667 annuity plus his new plan benefits (with CIGN’s annual deposits but without CIGN’s initial deposit). Fourth, the court “order[ed] and enjoin[ed] the CIGN Plan to reform its records to reflect that all class members now receive [the just described] ‘ + B’ benefits,” and that it pay appropriate benefits to those class members who had already retired. Fifth, the court held that ERIS provided the legal authority to enter this relief. That provision states that a “civil action may be brought” by a plan “par ticipant or beneficiary to recover benefits due to him under the terms of his plan.” 29 U.S. C. The court wrote that its orders in effect awarded “benefits under the terms of the plan” as reformed. 559 F. Supp. 2d, at 212. t the same time the court considered whether ERIS also provided legal authority to enter this relief. That provision states that a civil action may be brought “by a participant, beneficiary, or fiduciary () to en join any act or practice which violates any provision of this subchapter or the terms of the plan, or (B) to ob tain other appropriate equitable relief (i) to redress such violations or (ii) to enforce any provisions of this 12 CIGN CORP. v. MR Opinion of the Court subchapter or the terms of the plan.” 29 U.S. C. (emphasis added). The District Court decided not to answer this question because (1) it had just decided that the same relief was available under regardless, cf. Varity v. Howe, ; and (2) the Supreme Court has “issued several opinions that have severely curtailed the kinds of relief that are available under ” ; Great-West Life & nnuity Ins. Co. v. Knudson, 534 U.S. 204 (2002); and v. Hewitt ssociates, 508 U.S. 248 (1993)). 3 The parties cross-appealed the District Court’s judg ment. The Court of ppeals for the Second Circuit issued a brief summary order, rejecting all their claims, and affirming “the judgment of the district court for substan tially the reasons stated” in the District Court’s “well reasoned and scholarly opinions.” (2009). The parties filed cross-petitions for writs of certio rari in this Court. We granted the request in CIGN’s petition to consider whether a showing of “likely harm” is sufficient to entitle plan participants to recover benefits based on faulty disclosures. II CIGN in the merits briefing raises a preliminary question. Brief for Petitioners 13–20. It argues first and foremost that the statutory provision upon which the District Court rested its orders, namely, the provision for recovery of plan benefits, does not in fact authorize the District Court to enter the kind of relief it entered here. nd for that reason, CIGN argues, whether the District Court did or did not use a proper Cite as: 3 U. S. (2011) 13 Opinion of the Court standard for determining harm is beside the point. We believe that this preliminary question is closely enough related to the question presented that we shall consider it at the outset. The District Court ordered relief in two steps. Step 1: It ordered the terms of the plan reformed (so that they pro vided an “ plus B,” rather than a “greater of or B” guarantee). Step 2: It ordered the plan administrator (which it found to be CIGN) to enforce the plan as re formed. One can fairly describe step 2 as consistent with for that provision grants a participant the right to bring a civil action to “recover benefits due under the terms of his plan.” 29 U.S. C. nd step 2 orders recovery of the benefits provided by the “terms of [the] plan” as reformed. But what about step 1? Where does grant a court the power to change the terms of the plan as they previously existed? The statutory language speaks of “enforc[ing]” the “terms of the plan,” not of changing them. 29 U.S. C. (emphasis added). The provision allows a court to look outside the plan’s written language in deciding what those terms are, i.e., what the language means. See UNUM Life Ins. Co. of merica v. Ward, 526 U.S. 358, 377–379 (1999) (permitting the insurance terms of an ERIS-governed plan to be interpreted in light of state insurance rules). But we have found nothing sug gesting that the provision authorizes a court to alter those terms, at least not in present circumstances, where that change, akin to the reform of a contract, seems less like the simple enforcement of a contract as written and more like an equitable remedy. See infra, at 18. Nor can we accept the Solicitor General’s alternative rationale seeking to justify the use of this provision. The Solicitor General says that the District Court did enforce 14 CIGN CORP. v. MR Opinion of the Court the plan’s terms as written, adding that the “plan” in cludes the disclosures that constituted the summary plan descriptions. In other words, in the view of the Solicitor General, the terms of the summaries are terms of the plan. Even if the District Court had viewed the summaries as plan “terms” (which it did not, see at 10–11), however, we cannot agree that the terms of statutorily required plan summaries (or summaries of plan modifica tions) necessarily may be enforced (under as the terms of the plan itself. For one thing, it is difficult to square the Solicitor General’s reading of the statute with ERIS the provision that obliges plan adminis trators to furnish summary plan descriptions. The syntax of that provision, requiring that participants and benefici aries be advised of their rights and obligations “under the plan,” suggests that the information about the plan pro vided by those disclosures is not itself part of the plan. See 29 U.S. C. Nothing in (or, as far as we can tell, anywhere else) suggests the contrary. Nor do we find it easy to square the Solicitor General’s reading with the statute’s division of authority between a plan’s sponsor and the plan’s administrator. The plan’s sponsor (e.g., the employer), like a trust’s settlor, creates the basic terms and conditions of the plan, executes a written instrument containing those terms and conditions, and provides in that instrument “a procedure” for making amendments. 29 U.S. C. The plan’s admin istrator, a trustee-like fiduciary, manages the plan, follows its terms in doing so, and provides participants with the summary documents that describe the plan (and modifica tions) in readily understandable form. 101(a), 102, 104, 29 U.S. C. 1021(a), 1022, 1024 (2006 ed. and Supp. III). Here, the District Court found that the same entity, CIGN, filled both roles. See 534 F. Supp. 2d, at 331. But that is not always the case. Cite as: 3 U. S. (2011) 15 Opinion of the Court Regardless, we have found that ERIS carefully distin guishes these roles. See, e.g., Varity 516 U.S., at 498. nd we have no reason to believe that the statute intends to mix the responsibilities by giving the adminis trator the power to set plan terms indirectly by including them in the summary plan descriptions. See Curtiss- Wright Finally, we find it difficult to reconcile the Solicitor General’s interpretation with the basic summary plan description objective: clear, simple communication. See 102(a), 29 U.S. C. 1022(a) (2006 ed.). To make the language of a plan summary legally binding could well lead plan administrators to sacrifice simplicity and comprehensibility in order to describe plan terms in the language of lawyers. Consider the difference between a will and the summary of a will or between a property deed and its summary. Consider, too, the length of Part I of this opinion, and then consider how much longer Part I would have to be if we had to include all the qualifications and nuances that a plan drafter might have found impor tant and feared to omit lest they lose all legal significance. The District Court’s opinions take up 109 pages of the Federal Supplement. None of this is to say that plan administrators can avoid providing complete and accurate summaries of plan terms in the manner required by ERIS and its implementing regulations. But we fear that the Solicitor General’s rule might bring about com plexity that would defeat the fundamental purpose of the summaries. For these reasons taken together we conclude that the summary documents, important as they are, provide communication with beneficiaries about the plan, but that their statements do not themselves constitute the terms of the plan for purposes of We also conclude that the District Court could not find authority in that section to reform CIGN’s plan as written. 16 CIGN CORP. v. MR Opinion of the Court B If does not authorize entry of the relief here at issue, what about nearby ? That provi sion allows a participant, beneficiary, or fiduciary “to obtain other appropriate equitable relief ” to redress viola tions of (here relevant) parts of ERIS “or the terms of the plan.” 29 U.S. C. (emphasis added). The District Court strongly implied, but did not directly hold, that it would base its relief upon this subsection were it not for (1) the fact that the preceding “plan benefits due” provision, provided sufficient authority; and (2) certain cases from this Court that narrowed the appli cation of the term “appropriate equitable relief,” see, e.g., ; Great-West, Our holding in Part II–, removes the District Court’s first obstacle. nd given the likelihood that, on remand, the District Court will turn to and rely upon this alterna tive subsection, we consider the court’s second concern. We find that concern misplaced. We have interpreted the term “appropriate equitable relief ” in as referring to “ ‘those categories of relief ’ ” that, traditionally speaking (i.e., prior to the merger of law and equity) “ ‘were typically available in equity.’ ” (quoting 508 U.S., at 2). In we applied this principle to a claim seeking money damages brought by a beneficiary against a private firm that provided a trustee with actuar ial services. We found that the plaintiff sought “nothing other than compensatory damages” against a nonfiduci ary. nd we held that such a claim, traditionally speaking, was legal, not equi table, in nature. In Great-West, we considered a claim brought by a fidu ciary against a tort-award-winning beneficiary seeking monetary reimbursement for medical outlays that the plan had previously made on the beneficiary’s behalf. We noted Cite as: 3 U. S. (2011) 17 Opinion of the Court that the fiduciary sought to obtain a lien attaching to (or a constructive trust imposed upon) money that the benefici ary had received from the tort-case defendant. But we noted that the money in question was not the “particular” money that the tort defendant had paid. nd, tradition ally speaking, relief that sought a lien or a constructive trust was legal relief, not equitable relief, unless the funds in question were “particular funds or property in the defendant’s possession.” (emphasis added). The case before us concerns a suit by a beneficiary against a plan fiduciary (whom ERIS typically treats as a trustee) about the terms of a plan (which ERIS typi cally treats as a trust). See LaRue v. DeWolff, Boberg & ssociates, Inc., ; Varity –497. It is the kind of lawsuit that, before the merger of law and equity, respondents could have brought only in a court of equity, not a court of law. 4 Scott, W. Fratcher, & M. scher, Trusts p. 1654 (5th ed. 2007) (hereinafter Scott & scher) (“Trusts are, and always have been, the bailiwick of the courts of eq uity”); (a trustee was “only suable in equity”). With the exception of the relief now provided by Restatement (Second) of Trusts (1957) (hereinafter Second Restatement); 4 Scott & scher the remedies available to those courts of equity were traditionally considered equitable remedies, see Second Restatement J. dams, Doctrine of Equity: Commentary on the Law as dministered by the Court of Chancery 61 (7th m. ed. 1881) (hereinafter dams); 4 Scott & scher The District Court’s affirmative and negative injunc tions obviously fall within this category. at 2 (identifying injunctions, mandamus, and restitution as equitable relief ). nd other relief ordered by the Dis 18 CIGN CORP. v. MR Opinion of the Court trict Court resembles forms of traditional equitable relief. That is because equity chancellors developed a host of other “distinctively equitable” remedies—remedies that were “fitted to the nature of the primary right” they were intended to protect. 1 S. Symons, Pomeroy’s Equity Juris prudence pp. 139–140 (5th ed. 1941) (hereinafter Pomeroy). See generally 1 J. Story, Commentaries on Equity Jurisprudence (12th ed. 1877) (hereinafter Story). Indeed, a maxim of equity states that “[e]quity suffers not a right to be without a remedy.” R. Francis, Maxims of Equity 29 (1st m. ed. 1823). nd the relief entered here, insofar as it does not consist of injunctive relief, closely resembles three other traditional equitable remedies. First, what the District Court did here may be regarded as the reformation of the terms of the plan, in order to remedy the false or misleading information CIGN pro vided. The power to reform contracts (as contrasted with the power to enforce contracts as written) is a traditional power of an equity court, not a court of law, and was used to prevent fraud. See Balt v. Raleigh & ugusta R. Co., (“[I]t is well settled that equity would reform the contract, and enforce it, as reformed, if the mistake or fraud were shown”); (“The reformation of written contracts for fraud or mistake is an ordinary head of eq uity jurisdiction”); Bradford v. Union Bank of Tenn., 13 How. 57, 66 (1852); J. Eaton, Handbook of Equity Juris prudence p. 618 (1901) (hereinafter Eaton) (courts of common law could only void or enforce, but not reform, a contract); 4 Pomeroy at 1000 (reformation “chiefly occasioned by fraud or mistake,” which were themselves concerns of equity courts); 1 Story see also 4 Pomeroy at 999 (equity often considered refor mation a “preparatory step” that “establishes the real contract”). Cite as: 3 U. S. (2011) 19 Opinion of the Court Second, the District Court’s remedy essentially held CIGN to what it had promised, namely, that the new plan would not take from its employees benefits they had already accrued. This aspect of the remedy resembles estoppel, a traditional equitable remedy. See, e.g., E. Merwin, Principles of Equity and Equity Pleading (H. Merwin ed. 1895); 3 Pomeroy Equitable estoppel “operates to place the person entitled to its benefit in the same position he would have been in had the representa tions been true.” Eaton at 176. nd, as Justice Story long ago pointed out, equitable estoppel “forms a very essential element in fair dealing, and rebuke of all fraudulent misrepresentation, which it is the boast of courts of equity constantly to promote.” 2 Story at 776. Third, the District Court injunctions require the plan administrator to pay to already retired beneficiaries money owed them under the plan as reformed. But the fact that this relief takes the form of a money payment does not remove it from the category of traditionally equi table relief. Equity courts possessed the power to provide relief in the form of monetary “compensation” for a loss resulting from a trustee’s breach of duty, or to prevent the trustee’s unjust enrichment. Restatement (Third) of Trusts and Comment a (Tent. Draft No. 5, Mar. 2, 2009) (hereinafter Third Restatement); Eaton at 440. Indeed, prior to the merger of law and equity this kind of monetary remedy against a trustee, sometimes called a “surcharge,” was “exclusively equitable.” Princess Lida of Thurn and U.S. 4, 464 (1939); Third Restatement and Comment a; G. Bogert & G. Bogert, Trusts and Trustees (hereinafter Bogert); 4 Scott & scher 24.9, at 1659–1660, 1686; Second Restatement see also Manhattan Bank of (1889) (“The suit is plainly one of equitable cognizance, the 20 CIGN CORP. v. MR Opinion of the Court bill being filed to charge the defendant, as a trustee, for a breach of trust”); 1 J. Perry, Treatise on the Law of Trusts and Trustees p. 13 (common-law attempts “to punish trustees for a breach of trust in dam ages, w[ere] soon abandoned”). The surcharge remedy extended to a breach of trust committed by a fiduciary encompassing any violation of a duty imposed upon that fiduciary. See Second Restate ment dams 59; 4 Pomeroy 2 Story 1268. Thus, insofar as an award of make-whole relief is concerned, the fact that the defendant in this case, unlike the defendant in is analogous to a trustee makes a critical difference. See –263. In sum, contrary to the District Court’s fears, the types of reme dies the court entered here fall within the scope of the term “appropriate equitable relief ” in III Section 502(a)(3) invokes the equitable powers of the District Court. We cannot know with certainty which remedy the District Court understood itself to be impos ing, nor whether the District Court will find it appropriate to exercise its discretion under to impose that remedy on remand. We need not decide which remedies are appropriate on the facts of this case in order to resolve the parties’ dispute as to the appropriate legal standard in determining whether members of the relevant employee class were injured. The relevant substantive provisions of ERIS do not set forth any particular standard for determining harm. They simply require the plan administrator to write and to distribute written notices that are “sufficiently accurate and comprehensive to reasonably apprise” plan partici pants and beneficiaries of “their rights and obligations under the plan.” see also 204(h). Nor can we find a definite standard in the ERIS provision, Cite as: 3 U. S. (2011) 21 Opinion of the Court (which authorizes the court to enter “appropri ate equitable relief ” to redress ERIS “violations”). Hence any requirement of harm must come from the law of equity. Looking to the law of equity, there is no general princi ple that “detrimental reliance” must be proved before a remedy is decreed. To the extent any such requirement arises, it is because the specific remedy being contem plated imposes such a requirement. Thus, as CIGN points out, when equity courts used the remedy of estop pel, they insisted upon a showing akin to detrimental reliance, i.e., that the defendant’s statement “in truth, influenced the conduct of ” the plaintiff, causing “preju dic[e].” Eaton at 175; see 3 Pomeroy ccord ingly, when a court exercises its authority under to impose a remedy equivalent to estoppel, a showing of detrimental reliance must be made. But this showing is not always necessary for other equitable remedies. Equity courts, for example, would reform contracts to reflect the mutual understanding of the contracting parties where “fraudulent suppression[s], omission[s], or insertion[s],” 1 Story at 149, “mate rial[ly] affect[ed]” the “substance” of the contract, even if the “complaining part[y]” was negligent in not realizing its mistake, as long as its negligence did not fall below a standard of “reasonable prudence” and violate a legal duty. 3 Pomeroy §§8, 8b, at 334, 340–341; see Balt 115 U.S., at ; Eaton Nor did equity courts insist upon a showing of detrimen tal reliance in cases where they ordered “surcharge.” Rather, they simply ordered a trust or beneficiary made whole following a trustee’s breach of trust. In such in stances equity courts would “mold the relief to protect the rights of the beneficiary according to the situation in volved.” Bogert at 4. This flexible approach belies a strict requirement of “detrimental reliance.” 22 CIGN CORP. v. MR Opinion of the Court To be sure, just as a court of equity would not surcharge a trustee for a nonexistent harm, 4 Scott & scher a fiduciary can be surcharged under only upon a showing of actual harm—proved (under the default rule for civil cases) by a preponderance of the evidence. That actual harm may sometimes consist of detrimental reli ance, but it might also come from the loss of a right pro tected by ERIS or its trust-law antecedents. In the present case, it is not difficult to imagine how the failure to provide proper summary information, in violation of the statute, injured employees even if they did not themselves act in reliance on summary documents—which they might not themselves have seen—for they may have thought fellow employees, or informal workplace discussion, would have let them know if, say, plan changes would likely prove harmful. We doubt that Congress would have wanted to bar those employees from relief. The upshot is that we can agree with CIGN only to a limited extent. We believe that, to obtain relief by sur charge for violations of and 104(b), a plan partici pant or beneficiary must show that the violation injured him or her. But to do so, he or she need only show harm and causation. lthough it is not always necessary to meet the more rigorous standard implicit in the words “detrimental reliance,” actual harm must be shown. We are not asked to reassess the evidence. nd we are not asked about the other prerequisites for relief. We are asked about the standard of prejudice. nd we conclude that the standard of prejudice must be borrowed from equitable principles, as modified by the obligations and injuries identified by ERIS itself. Information-related circumstances, violations, and injuries are potentially too various in nature to insist that harm must always meet that more vigorous “detrimental harm” standard when equity imposed no such strict requirement. Cite as: 3 U. S. (2011) 23 Opinion of the Court IV We have premised our discussion in Part III on the need for the District Court to revisit its determination of an appropriate remedy for the violations of ERIS it identi fied. Whether or not the general principles we have dis cussed above are properly applicable in this case is for it or the Court of ppeals to determine in the first instance. Because the District Court has not determined if an ap propriate remedy may be imposed under we must vacate the judgment below and remand this case for further proceedings consistent with this opinion. It is so ordered. JUSTICE SOTOMYOR took no part in the consideration or decision of this case. Cite as: 3 U. S. (2011) 1 SCLI, J., concurring in judgment SUPREME COURT OF THE UNITED STTES No. 09–804 CIGN CORPORTION, ET L., PETITIONERS v. JNICE C. MR, ET L., INDIVIDULLY ND ON BEHLF OF LL OTHERS SIMILRLY SITUTED ON WRIT OF CERTIORRI TO THE UNITED STTES COURT OF PPELS FOR THE SECOND CIRCUIT [May 16, 2011] JUSTICE SCLI, with whom JUSTICE THOMS joins, concurring in the judgment.	2,126
Justice Scalia	concurring	false	CIGNA Corp. v. Amara	2011-05-16	null	https://www.courtlistener.com/opinion/216734/cigna-corp-v-amara/	https://www.courtlistener.com/api/rest/v3/clusters/216734/	2,011	2010-043	1	8	0	I agree with the Court that §502(a)(1)(B) of the Em ployee Retirement Income Security Act of 1974 (ERISA), 29 U.S. C. §1132(a)(1)(B), does not authorize relief for misrepresentations in a summary plan description (SPD). I do not join the Court’s opinion because I see no need and no justification for saying anything more than that. Section 502(a)(1)(B) of ERISA states that a plan partici pant or beneficiary may bring a civil action “to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan.” ERISA defines the word “plan” as “an employee welfare benefit plan or an employee pension benefit plan or a plan which is both,” 29 U.S. C. §1002(3), and it requires that a “plan” “be established and maintained pursuant to a written instrument,” §1102(a)(1). An SPD, in contrast, is a disclosure meant “to reasonably apprise [plan] partici pants and beneficiaries of their rights and obligations under the plan.” §1022(a). It would be peculiar for a doc ument meant to “apprise” participants of their rights “under the plan” to be itself part of the “plan.” Any doubt 2 CIGNA CORP. v. AMARA SCALIA, J., concurring in judgment that it is not is eliminated by ERISA’s repeated differen tiation of SPDs from the “written instruments” that con stitute a plan, see, e.g., §§1029(c), 1024(b)(2), and ERISA’s assignment to different entities of responsibility for draft ing and amending SPDs on the one hand and plans on the other, see §§1002(1), (2)(A); 1021(a) (2006 ed. and Supp. III), 1024(b)(1); Beck v. PACE Int’l Union, 551 U.S. 96, 101 (2007). An SPD, moreover, would not fulfill its pur pose of providing an easily accessible summary of the plan if it were an authoritative part of the plan itself; the minor omissions appropriate for a summary would risk revising the plan. Nothing else needs to be said to dispose of this case. The District Court based the relief it awarded upon ERISA §502(a)(1)(B), and that provision alone. It thought that the “benefits” due “under the terms of the plan,” 29 U.S. C. §1132(a)(1)(B), could derive from an SPD, either because the SPD is part of the plan or because it is capable of somehow modifying the plan. Under either justifica tion, that conclusion is wrong. An SPD is separate from a plan, and cannot amend a plan unless the plan so pro vides. See Curtiss-Wright Corp. v. Schoonejongen, 514 U.S. 73, 79, 85 (1995). I would go no further. The Court, however, ventures on to address a different question: whether respondents may recover under §502(a)(3) of ERISA, which allows plan participants “to obtain other appropriate equitable relief.” 29 U.S. C. §1132(a)(3). The District Court expressly declined to answer this question, stating that it “need not consider whether any relief ordered under §502(a)(1)(B) would also be available under §502(a)(3).” 559 F. Supp. 2d 192, 205 (Conn. 2008). It did note that §502(a)(3) might not help respondents because that provision authorizes only relief that was “ ‘typically available in equity.’ ” Ibid. (quoting Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204, 210 (2002)). But it described this question as “par Cite as: 563 U. S. ____ (2011) 3 SCALIA, J., concurring in judgment ticularly complicated,” 559 F. Supp. 2d, at 205, and said that “in view of these knotty issues . . . the Court need not, and does not, decide whether Plaintiffs could obtain relief under §502(a)(3),” id., at 206. It is assuredly not our normal practice to decide issues that a lower court “need not, and does not, decide,” see Cooper Industries, Inc. v. Aviall Services, Inc., 543 U.S. 157, 168–169 (2004), and this case presents no exceptional reason to do so. To the contrary, it presents additional reasons not to do so. Mertens v. Hewitt Associates, 508 U.S. 248 (1993), the case the District Court feared had “severely curtailed the kinds of relief . . . available under §502(a)(3),” 559 F. Supp. 2d, at 205, is cited exactly one time in the parties’ briefs—by the CIGNA petitioners for the utterly unrelated proposition that ERISA contains a “ ‘carefully crafted and detailed enforcement scheme.’ ” Brief for Petitioners 2. And there is no discussion whatso ever of contract reformation or surcharge in the briefs of the parties or even amici.1 The opinion for the Court states that the District Court “strongly implied . . . that it would base its relief upon [§502(a)(3)] were it not for (1) the fact that . . . §502(a)(1)(B) . . . provided sufficient authority; and (2) certain cases from this Court that narrowed the applica tion of the term ‘appropriate equitable relief.’ ” Ante, at 16. I find no such implication whatever—not even a weak one. The District Court simply said that §502(a)(1)(B) provided relief, and that under our cases §502(a)(3) might not do so. While some Members of this Court have sought to divine what legislators would have prescribed beyond what they did prescribe, none to my knowledge has hitherto sought to guess what district judges would have decided beyond —————— 1 “[P]lan reformation” makes an appearance in one sentence of one footnote of the Government’s brief, see Brief for United States as Amicus Curiae 30, n. 9. This cameo hardly qualifies as “discussion.” 4 CIGNA CORP. v. AMARA SCALIA, J., concurring in judgment what they did decide. And this, bear in mind, is not just a guess as to what the District Court would have done if it had known that its §502(a)(1)(B) relief was (as we today hold) improper. The apparent answer to that is that it would have denied relief, since it thought itself con strained by “certain cases from this Court that [have] narrowed [§502(a)(3)],” ante, at 16. No, the course the Court guesses about is what the District Court would have done if it had known both that §502(a)(1)(B) denies relief and that §502(a)(3) provides it. This speculation upon speculation hardly renders our discussion of §502(a)(3) relevant to the decision below; it is utterly irrelevant. Why the Court embarks on this peculiar path is beyond me. It cannot even be explained by an eagerness to demonstrate—by blatant dictum, if necessary—that, by George, plan members misled by an SPD will be compen sated. That they will normally be compensated is not in doubt. As the opinion for the Court notes, ante, at 10, the Second Circuit has interpreted ERISA as permitting the invalidation of plan amendments not preceded by proper notice, by reason of §204(h), which reads: “An applicable pension plan may not be amended so as to provide for a significant reduction in the rate of future benefit accrual unless the plan administrator provides the notice described in paragraph (2) to each applicable individual . . . .” 29 U.S. C. §1054(h)(1). This provision appears a natural fit to respondents’ claim, which is not that CIGNA was prohibited from changing its plan, but that CIGNA “failed to give them proper notice of changes to their benefits.” Ante, at 1. It was inapplicable here only because of the peculiar facts of this case and the manner in which respondents chose to argue the case. 2 —————— 2 The District Court found that §204(h) was unhelpful because CIGNA had provided a valid notice of its decision to freeze benefits under the old plan. If the new plan were invalidated because of a Cite as: 563 U. S. ____ (2011) 5 SCALIA, J., concurring in judgment Rather than attempting to read the District Judge’s palm, I would simply remand. If the District Court dis misses the case based on an incorrect reading of Mertens, the Second Circuit can correct its error, and if the Second Circuit does not do so this Court can grant certiorari. The Court’s discussion of the relief available under §502(a)(3) and Mertens is purely dicta, binding upon neither us nor the District Court. The District Court need not read any of it—and, indeed, if it takes our suggestions to heart, we may very well reverse. Even if we adhere to our dicta that contract reformation, estoppel, and surcharge are “ ‘dis tinctively equitable’ remedies,” ante, at 18, it is far from clear that they are available remedies in this case. The opinion for the Court does not say (much less hold) that they are and disclaims the implication, see ante, at 20. Contract reformation is a standard remedy for altering the terms of a writing that fails to express the agreement of the parties “owing to the fraud of one of the parties and mistake of the other.” 27 Williston on Contracts §69:55, p. 160 (4th ed. 2010). But here, the Court would be em ploying that doctrine to alter the terms of a contract in response to a third party’s misrepresentations—not those of a party to the contract. The SPD is not part of the ERISA plan, and it was not written by the plan’s sponsor. Although in this case CIGNA wrote both the plan and the SPD, it did so in different capacities: as sponsor when writing the plan, and as administrator when preparing the SPD. ERISA “carefully distinguishes these roles,” ante, at 15; see also Beck, 551 U.S., at 101, and nothing the Court cites suggests that they blend together when performed by —————— defective §204(h) notice, the freeze would return to force, and respon dents would be worse off. Respondents might (and likely should) have argued that the notice for the freeze was itself void, but they “argued none of these things,” and the District Court declined to “make these arguments now on [their] behalf.” 559 F. Supp. 2d 192, 208 (Conn. 2008). 6 CIGNA CORP. v. AMARA SCALIA, J., concurring in judgment the same entity. Admittedly, reformation might be available if the third party was an agent of a contracting party and its misrep resentations could thus be attributed to it under agency law. But such a relationship has not been alleged and is unlikely here. An ERISA administrator’s duty to provide employees with an SPD arises by statute, 29 U.S. C. §1024(b)(1), and not by reason of its relationship to the sponsor. The administrator is a legally distinct entity. Moreover, it is incoherent to think of the administrator as agent and the sponsor as principal. Were this the case, and were the administrator contracting with employees as an agent of the sponsor in producing the SPD, then the SPD would be part of the plan or would amend it—exactly what the opinion for the Court rejects in Part II–A, ante, at 13–15. And, in any event, SPDs may be furnished months after an employee accepts a pension or benefit plan. §1024(b)(1). Reformation is meant to effectuate mutual intent at the time of contracting, and that intent is not retroactively revised by subsequent misstatements. Equitable estoppel and surcharge are perhaps better suited to the facts of this case. CIGNA admits that re spondents might be able to recover under §502(a)(3) pur suant to an equitable estoppel theory, but it presumably makes this concession only because questions of reliance would be individualized and potentially inappropriate for class-action treatment. Surcharge (which CIGNA does not concede and which is not briefed) may encounter the same problem. The amount for which an administrator may be surcharged is, as the opinion for the Court notes, the “actual harm” suffered by an employee, ante, at 22—that is, harm stemming from reliance on the SPD or the lost opportunity to contest or react to the switch. Cf. 3 A. Scott & W. Fratcher, Law of Trusts §205, pp. 237–243 (4th ed. 1988). A remedy relating only to that harm would of course Cite as: 563 U. S. ____ (2011) 7 SCALIA, J., concurring in judgment be far different from what the District Court imposed.3 * * * I agree with the Court that an SPD is not part of an ERISA plan, and that, as a result, a plan participant or beneficiary may not recover for misrepresentations in an SPD under §502(a)(1)(B). Because this is the only question properly presented for our review, and the only question briefed and argued before us, I concur only in the judgment. —————— 3 It is also not obvious that the relief sought in this case would consti tute an equitable surcharge allowable under Mertens v. Hewitt Associ ates, 508 U.S. 248 (1993). Cf. Knieriem v. Group Health Plan, Inc., 434 F.3d 1058, 1063–1064 (CA8 2006). This question, however, like the Court’s entire discussion of §502(a)(3), is best left for a case in which the issue is raised and briefed	I agree with the Court that of the Em ployee Retirement Income Security Act of 1974 (ERISA), 29 U.S. C. does not authorize relief for misrepresentations in a summary plan description (SPD). I do not join the Court’s opinion because I see no need and no justification for saying anything more than that. Section 502(a)(1)(B) of ERISA states that a plan partici pant or beneficiary may bring a civil action “to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan.” ERISA defines the word “plan” as “an employee welfare benefit plan or an employee pension benefit plan or a plan which is both,” 29 U.S. C. and it requires that a “plan” “be established and maintained pursuant to a written instrument,” An SPD, in contrast, is a disclosure meant “to reasonably apprise [plan] partici pants and beneficiaries of their rights and obligations under the plan.” It would be peculiar for a doc ument meant to “apprise” participants of their rights “under the plan” to be itself part of the “plan.” Any doubt 2 CIGNA CORP. v. AMARA SCALIA, J., concurring in judgment that it is not is eliminated by ERISA’s repeated differen tiation of SPDs from the “written instruments” that con stitute a plan, see, e.g., 1024(b)(2), and ERISA’s assignment to different entities of responsibility for draft ing and amending SPDs on the one hand and plans on the other, see (2)(A); 1021(a) (2006 ed. and Supp. III), 1024(b)(1); 101 (2007). An SPD, moreover, would not fulfill its pur pose of providing an easily accessible summary of the plan if it were an authoritative part of the plan itself; the minor omissions appropriate for a summary would risk revising the plan. Nothing else needs to be said to dispose of this case. The District Court based the relief it awarded upon ERISA and that provision alone. It thought that the “benefits” due “under the terms of the plan,” 29 U.S. C. could derive from an SPD, either because the SPD is part of the plan or because it is capable of somehow modifying the plan. Under either justifica tion, that conclusion is wrong. An SPD is separate from a plan, and cannot amend a plan unless the plan so pro vides. See Curtiss-Wright Corp. v. Schoonejongen, 514 U.S. 73, 79, 85 (1995). I would go no further. The Court, however, ventures on to address a different question: whether respondents may recover under of ERISA, which allows plan participants “to obtain other appropriate equitable relief.” 29 U.S. C. The District Court expressly declined to answer this question, stating that it “need not consider whether any relief ordered under would also be available under” (Conn. 2008). It did note that might not help respondents because that provision authorizes only relief that was “ ‘typically available in equity.’ ” (quoting Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204, 210 (2002)). But it described this question as “par Cite as: 563 U. S. (2011) 3 SCALIA, J., concurring in judgment ticularly complicated,” 559 F. Supp. 2d, at and said that “in view of these knotty issues the Court need not, and does not, decide whether Plaintiffs could obtain relief under” It is assuredly not our normal practice to decide issues that a lower court “need not, and does not, decide,” see Cooper Industries, Inc. v. Aviall Services, Inc., 543 U.S. 157, 168–169 (2004), and this case presents no exceptional reason to do so. To the contrary, it presents additional reasons not to do so. Mertens v. Hewitt Associates, 508 U.S. 248 the case the District Court feared had “severely curtailed the kinds of relief available under” 559 F. Supp. 2d, at is cited exactly one time in the parties’ briefs—by the CIGNA petitioners for the utterly unrelated proposition that ERISA contains a “ ‘carefully crafted and detailed enforcement scheme.’ ” Brief for Petitioners 2. And there is no discussion whatso ever of contract reformation or surcharge in the briefs of the parties or even amici.1 The opinion for the Court states that the District Court “strongly implied that it would base its relief upon [] were it not for (1) the fact that provided sufficient authority; and (2) certain cases from this Court that narrowed the applica tion of the term ‘appropriate equitable relief.’ ” Ante, at 16. I find no such implication whatever—not even a weak one. The District Court simply said that provided relief, and that under our cases might not do so. While some Members of this Court have sought to divine what legislators would have prescribed beyond what they did prescribe, none to my knowledge has hitherto sought to guess what district judges would have decided beyond —————— 1 “[P]lan reformation” makes an appearance in one sentence of one footnote of the Government’s brief, see Brief for United States as Amicus Curiae 30, n. 9. This cameo hardly qualifies as “discussion.” 4 CIGNA CORP. v. AMARA SCALIA, J., concurring in judgment what they did decide. And this, bear in mind, is not just a guess as to what the District Court would have done if it had known that its relief was (as we today hold) improper. The apparent answer to that is that it would have denied relief, since it thought itself con strained by “certain cases from this Court that [have] narrowed [],” ante, at 16. No, the course the Court guesses about is what the District Court would have done if it had known both that denies relief and that provides it. This speculation upon speculation hardly renders our discussion of relevant to the decision below; it is utterly irrelevant. Why the Court embarks on this peculiar path is beyond me. It cannot even be explained by an eagerness to demonstrate—by blatant dictum, if necessary—that, by George, plan members misled by an SPD will be compen sated. That they will normally be compensated is not in doubt. As the opinion for the Court notes, ante, at 10, the Second Circuit has interpreted ERISA as permitting the invalidation of plan amendments not preceded by proper notice, by reason of which reads: “An applicable pension plan may not be amended so as to provide for a significant reduction in the rate of future benefit accrual unless the plan administrator provides the notice described in paragraph (2) to each applicable individual” 29 U.S. C. This provision appears a natural fit to respondents’ claim, which is not that CIGNA was prohibited from changing its plan, but that CIGNA “failed to give them proper notice of changes to their benefits.” Ante, at 1. It was inapplicable here only because of the peculiar facts of this case and the manner in which respondents chose to argue the case. 2 —————— 2 The District Court found that was unhelpful because CIGNA had provided a valid notice of its decision to freeze benefits under the old plan. If the new plan were invalidated because of a Cite as: 563 U. S. (2011) 5 SCALIA, J., concurring in judgment Rather than attempting to read the District Judge’s palm, I would simply remand. If the District Court dis misses the case based on an incorrect reading of Mertens, the Second Circuit can correct its error, and if the Second Circuit does not do so this Court can grant certiorari. The Court’s discussion of the relief available under and Mertens is purely dicta, binding upon neither us nor the District Court. The District Court need not read any of it—and, indeed, if it takes our suggestions to heart, we may very well reverse. Even if we adhere to our dicta that contract reformation, estoppel, and surcharge are “ ‘dis tinctively equitable’ remedies,” ante, at 18, it is far from clear that they are available remedies in this case. The opinion for the Court does not say (much less hold) that they are and disclaims the implication, see ante, at 20. Contract reformation is a standard remedy for altering the terms of a writing that fails to express the agreement of the parties “owing to the fraud of one of the parties and mistake of the other.” 27 Williston on Contracts p. 160 (4th ed. 2010). But here, the Court would be em ploying that doctrine to alter the terms of a contract in response to a third party’s misrepresentations—not those of a party to the contract. The SPD is not part of the ERISA plan, and it was not written by the plan’s sponsor. Although in this case CIGNA wrote both the plan and the SPD, it did so in different capacities: as sponsor when writing the plan, and as administrator when preparing the SPD. ERISA “carefully distinguishes these roles,” ante, at 15; see also and nothing the Court cites suggests that they blend together when performed by —————— defective notice, the freeze would return to force, and respon dents would be worse off. Respondents might (and likely should) have argued that the notice for the freeze was itself void, but they “argued none of these things,” and the District Court declined to “make these arguments now on [their] behalf.” (Conn. 2008). 6 CIGNA CORP. v. AMARA SCALIA, J., concurring in judgment the same entity. Admittedly, reformation might be available if the third party was an agent of a contracting party and its misrep resentations could thus be attributed to it under agency law. But such a relationship has not been alleged and is unlikely here. An ERISA administrator’s duty to provide employees with an SPD arises by statute, 29 U.S. C. and not by reason of its relationship to the sponsor. The administrator is a legally distinct entity. Moreover, it is incoherent to think of the administrator as agent and the sponsor as principal. Were this the case, and were the administrator contracting with employees as an agent of the sponsor in producing the SPD, then the SPD would be part of the plan or would amend it—exactly what the opinion for the Court rejects in Part II–A, ante, at 13–15. And, in any event, SPDs may be furnished months after an employee accepts a pension or benefit plan. Reformation is meant to effectuate mutual intent at the time of contracting, and that intent is not retroactively revised by subsequent misstatements. Equitable estoppel and surcharge are perhaps better suited to the facts of this case. CIGNA admits that re spondents might be able to recover under pur suant to an equitable estoppel theory, but it presumably makes this concession only because questions of reliance would be individualized and potentially inappropriate for class-action treatment. Surcharge (which CIGNA does not concede and which is not briefed) may encounter the same problem. The amount for which an administrator may be surcharged is, as the opinion for the Court notes, the “actual harm” suffered by an employee, ante, at 22—that is, harm stemming from reliance on the SPD or the lost opportunity to contest or react to the switch. Cf. 3 A. Scott & W. Fratcher, Law of Trusts §, pp. 237–243 (4th ed. 1988). A remedy relating only to that harm would of course Cite as: 563 U. S. (2011) 7 SCALIA, J., concurring in judgment be far different from what the District Court imposed.3 * * * I agree with the Court that an SPD is not part of an ERISA plan, and that, as a result, a plan participant or beneficiary may not recover for misrepresentations in an SPD under Because this is the only question properly presented for our review, and the only question briefed and argued before us, I concur only in the judgment. —————— 3 It is also not obvious that the relief sought in this case would consti tute an equitable surcharge allowable under Cf. Knieriem v. Group Health Plan, Inc., 434 F.3d 1058, 1063–1064 (CA8 2006). This question, however, like the Court’s entire discussion of is best left for a case in which the issue is raised and briefed	2,127
Justice Thomas	majority	false	National Institute of Family and Life Advocates v. Becerra	2018-06-26	null	https://www.courtlistener.com/opinion/4511150/national-institute-of-family-and-life-advocates-v-becerra/	https://www.courtlistener.com/api/rest/v3/clusters/4511150/	2,018	2017-041	1	5	4	The California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act (FACT Act) requires clinics that primarily serve pregnant women to provide certain notices. Cal. Health & Safety Code Ann. §123470 et seq. (West 2018). Licensed clinics must notify women that California provides free or low-cost services, including abortions, and give them a phone number to call. Unlicensed clinics must notify women that California has not licensed the clinics to provide medical services. The question in this case is whether these notice requirements violate the First Amendment. I A The California State Legislature enacted the FACT Act to regulate crisis pregnancy centers. Crisis pregnancy centers—according to a report commissioned by the Cali- fornia State Assembly, App. 86—are “pro-life (largely Christian belief-based) organizations that offer a limited 2 NATIONAL INSTITUTE OF FAMILY AND LIFE ADVOCATES v. BECERRA Opinion of the Court range of free pregnancy options, counseling, and other services to individuals that visit a center.” Watters et al., Pregnancy Resource Centers: Ensuring Access and Accu- racy of Information 4 (2011). “[U]nfortunately,” the au- thor of the FACT Act stated, “there are nearly 200 licensed and unlicensed” crisis pregnancy centers in California. App. 84. These centers “aim to discourage and prevent women from seeking abortions.” Id., at 85. The author of the FACT Act observed that crisis pregnancy centers “are commonly affiliated with, or run by organizations whose stated goal” is to oppose abortion—including “the National Institute of Family and Life Advocates,” one of the peti- tioners here. Ibid. To address this perceived problem, the FACT Act imposes two notice requirements on facilities that provide pregnancy-related services—one for licensed facilities and one for unlicensed facilities. 1 The first notice requirement applies to “licensed covered facilit[ies].” Cal. Health & Safety Code Ann. §123471(a). To fall under the definition of “licensed covered facility,” a clinic must be a licensed primary care or specialty clinic or qualify as an intermittent clinic under California law. Ibid. (citing §§1204, 1206(h)). A licensed covered facility also must have the “primary purpose” of “providing fam- ily planning or pregnancy-related services.” §123471(a). And it must satisfy at least two of the following six requirements: “(1) The facility offers obstetric ultrasounds, obstetric sonograms, or prenatal care to pregnant women. “(2) The facility provides, or offers counseling about, contraception or contraceptive methods. “(3) The facility offers pregnancy testing or pregnancy diagnosis. “(4) The facility advertises or solicits patrons with of- Cite as: 585 U. S. ____ (2018) 3 Opinion of the Court fers to provide prenatal sonography, pregnancy tests, or pregnancy options counseling. “(5) The facility offers abortion services. “(6) The facility has staff or volunteers who collect health information from clients.” Ibid. The FACT Act exempts several categories of clinics that would otherwise qualify as licensed covered facilities. Clinics operated by the United States or a federal agency are excluded, as are clinics that are “enrolled as a Medi- Cal provider” and participate in “the Family Planning, Access, Care, and Treatment Program” (Family PACT program). §123471(c). To participate in the Family PACT program, a clinic must provide “the full scope of family planning . . . services specified for the program,” Cal. Welf. & Inst. Code Ann. §24005(c) (West 2018), including sterilization and emergency contraceptive pills, §§24007(a)(1), (2). If a clinic is a licensed covered facility, the FACT Act requires it to disseminate a government-drafted notice on site. Cal. Health & Safety Code Ann. §123472(a)(1). The notice states that “California has public programs that provide immediate free or low-cost access to comprehen- sive family planning services (including all FDA-approved methods of contraception), prenatal care, and abortion for eligible women. To determine whether you qualify, con- tact the county social services office at [insert the tele- phone number].” Ibid. This notice must be posted in the waiting room, printed and distributed to all clients, or provided digitally at check-in. §123472(a)(2). The notice must be in English and any additional languages identi- fied by state law. §123472(a). In some counties, that means the notice must be spelled out in 13 different lan- guages. See State of Cal., Dept. of Health Care Services, Frequency of Threshold Language Speakers in the Medi- 4 NATIONAL INSTITUTE OF FAMILY AND LIFE ADVOCATES v. BECERRA Opinion of the Court Cal Population by County for Jan. 2015, pp. 4–5 (Sept. 2016) (identifying the required languages for Los Angeles County as English, Spanish, Armenian, Mandarin, Can- tonese, Korean, Vietnamese, Farsi, Tagalog, Russian, Cambodian, Other Chinese, and Arabic). The stated purpose of the FACT Act, including its li- censed notice requirement, is to “ensure that California residents make their personal reproductive health care decisions knowing their rights and the health care services available to them.” 2015 Cal. Legis. Serv. Ch. 700, §2 (A. B. 775) (West) (Cal. Legis. Serv.). The Legislature posited that “thousands of women remain unaware of the public programs available to provide them with contracep- tion, health education and counseling, family planning, prenatal care, abortion, or delivery.” §1(b). Citing the “time sensitive” nature of pregnancy-related decisions, §1(c), the Legislature concluded that requiring licensed facilities to inform patients themselves would be “[t]he most effective” way to convey this information, §1(d). 2 The second notice requirement in the FACT Act applies to “unlicensed covered facilit[ies].” §123471(b). To fall under the definition of “unlicensed covered facility,” a facility must not be licensed by the State, not have a li- censed medical provider on staff or under contract, and have the “primary purpose” of “providing pregnancy- related services.” Ibid. An unlicensed covered facility also must satisfy at least two of the following four requirements: “(1) The facility offers obstetric ultrasounds, obstetric sonograms, or prenatal care to pregnant women. “(2) The facility offers pregnancy testing or pregnancy diagnosis. “(3) The facility advertises or solicits patrons with of- Cite as: 585 U. S. ____ (2018) 5 Opinion of the Court fers to provide prenatal sonography, pregnancy tests, or pregnancy options counseling. “(4) The facility has staff or volunteers who collect health information from clients.” Ibid. Clinics operated by the United States and licensed primary care clinics enrolled in Medi-Cal and Family PACT are excluded. §123471(c). Unlicensed covered facilities must provide a government- drafted notice stating that “[t]his facility is not li- censed as a medical facility by the State of California and has no licensed medical provider who provides or directly supervises the provision of services.” Cal. Health & Safety Code Ann. §123472(b)(1). This notice must be provided on site and in all advertising materials. §§123472(b)(2), (3). Onsite, the notice must be posted “conspicuously” at the entrance of the facility and in at least one waiting area. §123472(b)(2). It must be “at least 8.5 inches by 11 inches and written in no less than 48-point type.” Ibid. In adver- tisements, the notice must be in the same size or larger font than the surrounding text, or otherwise set off in a way that draws attention to it. §123472(b)(3). Like the licensed notice, the unlicensed notice must be in English and any additional languages specified by state law. §123471(b). Its stated purpose is to ensure “that pregnant women in California know when they are getting medical care from licensed professionals.” Cal. Legis. Serv., §1(e). B After the Governor of California signed the FACT Act, petitioners—a licensed pregnancy center, an unlicensed pregnancy center, and an organization composed of crisis pregnancy centers—filed this suit. Petitioners alleged that the licensed and unlicensed notices abridge the free- dom of speech protected by the First Amendment. The District Court denied their motion for a preliminary 6 NATIONAL INSTITUTE OF FAMILY AND LIFE ADVOCATES v. BECERRA Opinion of the Court injunction. The Court of Appeals for the Ninth Circuit affirmed. National Institute of Family and Life Advocates v. Harris, 839 F.3d 823, 845 (2016). After concluding that petition- ers’ challenge to the FACT Act was ripe,1 id., at 833, the Ninth Circuit held that petitioners could not show a like- lihood of success on the merits. It concluded that the licensed notice survives the “lower level of scrutiny” that applies to regulations of “professional speech.” Id., at 833– 842. And it concluded that the unlicensed notice satisfies any level of scrutiny. See id., at 843–844. We granted certiorari to review the Ninth Circuit’s decision. 583 U. S. ___ (2017). We reverse with respect to both notice requirements. II We first address the licensed notice.2 A The First Amendment, applicable to the States through the Fourteenth Amendment, prohibits laws that abridge the freedom of speech. When enforcing this prohibition, our precedents distinguish between content-based and content-neutral regulations of speech. Content-based regulations “target speech based on its communicative content.” Reed v. Town of Gilbert, 576 U. S. ___, ___ (2015) (slip op., at 6). As a general matter, such laws “are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests.” Ibid. This stringent standard reflects the fundamental principle that govern- —————— 1 Weagree with the Ninth Circuit’s ripeness determination. 2 Petitioners raise serious concerns that both the licensed and unli- censed notices discriminate based on viewpoint. Because the notices are unconstitutional either way, as explained below, we need not reach that issue. Cite as: 585 U. S. ____ (2018) 7 Opinion of the Court ments have “ ‘no power to restrict expression because of its message, its ideas, its subject matter, or its content.’ ” Ibid. (quoting Police Dept. of Chicago v. Mosley, 408 U.S. 92, 95 (1972)). The licensed notice is a content-based regulation of speech. By compelling individuals to speak a particular message, such notices “alte[r] the content of [their] speech.” Riley v. National Federation of Blind of N. C., Inc., 487 U.S. 781, 795 (1988); accord, Turner Broadcast- ing System, Inc. v. FCC, 512 U.S. 622, 642 (1994); Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 256 (1974). Here, for example, licensed clinics must provide a government-drafted script about the availability of state- sponsored services, as well as contact information for how to obtain them. One of those services is abortion—the very practice that petitioners are devoted to opposing. By requiring petitioners to inform women how they can ob- tain state-subsidized abortions—at the same time peti- tioners try to dissuade women from choosing that option— the licensed notice plainly “alters the content” of petition- ers’ speech. Riley, supra, at 795. B Although the licensed notice is content based, the Ninth Circuit did not apply strict scrutiny because it concluded that the notice regulates “professional speech.” 839 F.3d, at 839. Some Courts of Appeals have recognized “profes- sional speech” as a separate category of speech that is subject to different rules. See, e.g., King v. Governors of New Jersey, 767 F.3d 216, 232 (CA3 2014); Pickup v. Brown, 740 F.3d 1208, 1227–1229 (CA9 2014); Moore- King v. County of Chesterfield, 708 F.3d 560, 568–570 (CA4 2014). These courts define “professionals” as indi- viduals who provide personalized services to clients and who are subject to “a generally applicable licensing and regulatory regime.” Id., at 569; see also, King, supra, at 8 NATIONAL INSTITUTE OF FAMILY AND LIFE ADVOCATES v. BECERRA Opinion of the Court 232; Pickup, supra, at 1230. “Professional speech” is then defined as any speech by these individuals that is based on “[their] expert knowledge and judgment,” King, supra, at 232, or that is “within the confines of [the] professional relationship,” Pickup, supra, at 1228. So defined, these courts except professional speech from the rule that content- based regulations of speech are subject to strict scru- tiny. See King, supra, at 232; Pickup, supra, at 1053– 1056; Moore-King, supra, at 569. But this Court has not recognized “professional speech” as a separate category of speech. Speech is not unpro- tected merely because it is uttered by “professionals.” This Court has “been reluctant to mark off new categories of speech for diminished constitutional protection.” Denver Area Ed. Telecommunications Consortium, Inc. v. FCC, 518 U.S. 727, 804 (1996) (KENNEDY, J., concurring in part, concurring in judgment in part, and dissenting in part). And it has been especially reluctant to “exemp[t] a category of speech from the normal prohibition on content- based restrictions.” United States v. Alvarez, 567 U.S. 709, 722 (2012) (plurality opinion). This Court’s prece- dents do not permit governments to impose content-based restrictions on speech without “ ‘persuasive evidence . . . of a long (if heretofore unrecognized) tradition’ ” to that effect. Ibid. (quoting Brown v. Entertainment Merchants Assn., 564 U.S. 786, 792 (2011)). This Court’s precedents do not recognize such a tradi- tion for a category called “professional speech.” This Court has afforded less protection for professional speech in two circumstances—neither of which turned on the fact that professionals were speaking. First, our precedents have applied more deferential review to some laws that require professionals to disclose factual, noncontroversial infor- mation in their “commercial speech.” See, e.g., Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626, 651 (1985); Milavetz, Gallop & Milavetz, Cite as: 585 U. S. ____ (2018) 9 Opinion of the Court P. A. v. United States, 559 U.S. 229, 250 (2010); Ohralik v. Ohio State Bar Assn., 436 U.S. 447, 455–456 (1978). Second, under our precedents, States may regulate profes- sional conduct, even though that conduct incidentally involves speech. See, e.g., id., at 456; Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 884 (1992) (opinion of O’Connor, KENNEDY, and Souter, JJ.). But neither line of precedents is implicated here. 1 This Court’s precedents have applied a lower level of scrutiny to laws that compel disclosures in certain con- texts. In Zauderer, for example, this Court upheld a rule requiring lawyers who advertised their services on a contingency-fee basis to disclose that clients might be re- quired to pay some fees and costs. 471 U.S., at 650–653. Noting that the disclosure requirement governed only “commercial advertising” and required the disclosure of “purely factual and uncontroversial information about the terms under which . . . services will be available,” the Court explained that such requirements should be upheld unless they are “unjustified or unduly burdensome.” Id., at 651. The Zauderer standard does not apply here. Most obvi- ously, the licensed notice is not limited to “purely factual and uncontroversial information about the terms under which . . . services will be available.” 471 U.S., at 651; see also Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557, 573 (1995) (explain- ing that Zauderer does not apply outside of these circum- stances). The notice in no way relates to the services that licensed clinics provide. Instead, it requires these clinics to disclose information about state-sponsored services— including abortion, anything but an “uncontroversial” topic. Accordingly, Zauderer has no application here. 10 NATIONAL INSTITUTE OF FAMILY AND LIFE ADVOCATES v. BECERRA Opinion of the Court 2 In addition to disclosure requirements under Zauderer, this Court has upheld regulations of professional conduct that incidentally burden speech. “[T]he First Amendment does not prevent restrictions directed at commerce or conduct from imposing incidental burdens on speech,” Sorrell v. IMS Health Inc., 564 U.S. 552, 567 (2011), and professionals are no exception to this rule, see Ohralik, supra, at 456. Longstanding torts for professional mal- practice, for example, “fall within the traditional purview of state regulation of professional conduct.” NAACP v. Button, 371 U.S. 415, 438 (1963); but cf. id., at 439 (“[A] State may not, under the guise of prohibiting professional misconduct, ignore constitutional rights”). While drawing the line between speech and conduct can be difficult, this Court’s precedents have long drawn it, see, e.g., Sorrell, supra, at 567; Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 502 (1949), and the line is “ ‘long familiar to the bar,’ ” United States v. Stevens, 559 U.S. 460, 468 (2010) (quoting Simon & Schuster, Inc. v. Members of N. Y State Crime Victims Bd., 502 U.S. 105, 127 (1991) (KENNEDY, J., concurring in judgment)). In Planned Parenthood of Southeastern Pa. v. Casey, for example, this Court upheld a law requiring physicians to obtain informed consent before they could perform an abortion. 505 U.S., at 884 (joint opinion of O’Connor, KENNEDY, and Souter, JJ.). Pennsylvania law required physicians to inform their patients of “the nature of the procedure, the health risks of the abortion and childbirth, and the ‘probable gestational age of the unborn child.’ ” Id., at 881. The law also required physicians to inform patients of the availability of printed materials from the State, which provided information about the child and various forms of assistance. Ibid. The joint opinion in Casey rejected a free-speech chal- lenge to this informed-consent requirement. Id., at 884. It Cite as: 585 U. S. ____ (2018) 11 Opinion of the Court described the Pennsylvania law as “a requirement that a doctor give a woman certain information as part of obtain- ing her consent to an abortion,” which “for constitutional purposes, [was] no different from a requirement that a doctor give certain specific information about any medical procedure.” Ibid. The joint opinion explained that the law regulated speech only “as part of the practice of medicine, subject to reasonable licensing and regulation by the State.” Ibid. (emphasis added). Indeed, the requirement that a doctor obtain informed consent to perform an opera- tion is “firmly entrenched in American tort law.” Cruzan v. Director, Mo. Dept. of Health, 497 U.S. 261, 269 (1990); see, e.g., Schloendorff v. Society of N. Y. Hospital, 211 N.Y. 125, 129–130, 105 N.E. 92, 93 (1914) (Cardozo, J.) (explaining that “a surgeon who performs an operation without his patient’s consent commits an assault”). The licensed notice at issue here is not an informed- consent requirement or any other regulation of professional conduct. The notice does not facilitate informed consent to a medical procedure. In fact, it is not tied to a procedure at all. It applies to all interactions between a covered facility and its clients, regardless of whether a medical procedure is ever sought, offered, or performed. If a cov- ered facility does provide medical procedures, the notice provides no information about the risks or benefits of those procedures. Tellingly, many facilities that provide the exact same services as covered facilities—such as general practice clinics, see §123471(a)—are not required to provide the licensed notice. The licensed notice regu- lates speech as speech. 3 Outside of the two contexts discussed above— disclosures under Zauderer and professional conduct—this Court’s precedents have long protected the First Amend- ment rights of professionals. For example, this Court has 12 NATIONAL INSTITUTE OF FAMILY AND LIFE ADVOCATES v. BECERRA Opinion of the Court applied strict scrutiny to content-based laws that regulate the noncommercial speech of lawyers, see Reed, 576 U. S., at ___ (slip op., at 10) (discussing Button, supra, at 438); In re Primus, 436 U.S. 412, 432 (1978); professional fund- raisers, see Riley, 487 U.S., at 798; and organizations that provided specialized advice about international law, see Holder v. Humanitarian Law Project, 561 U.S. 1, 27–28 (2010). And the Court emphasized that the lawyer’s statements in Zauderer would have been “fully protected” if they were made in a context other than advertising. 471 U.S., at 637, n. 7. Moreover, this Court has stressed the danger of content-based regulations “in the fields of medi- cine and public health, where information can save lives.” Sorrell, supra, at 566. The dangers associated with content-based regulations of speech are also present in the context of professional speech. As with other kinds of speech, regulating the content of professionals’ speech “pose[s] the inherent risk that the Government seeks not to advance a legitimate regulatory goal, but to suppress unpopular ideas or infor- mation.” Turner Broadcasting, 512 U.S., at 641. Take medicine, for example. “Doctors help patients make deeply personal decisions, and their candor is crucial.” Woll- schlaeger v. Governor of Florida, 848 F.3d 1293, 1328 (CA11 2017) (en banc) (W. Pryor, J. concurring). Throughout history, governments have “manipulat[ed] the content of doctor-patient discourse” to increase state power and suppress minorities: “For example, during the Cultural Revolution, Chi- nese physicians were dispatched to the countryside to convince peasants to use contraception. In the 1930s, the Soviet government expedited completion of a con- struction project on the Siberian railroad by ordering doctors to both reject requests for medical leave from work and conceal this government order from their Cite as: 585 U. S. ____ (2018) 13 Opinion of the Court patients. In Nazi Germany, the Third Reich system- atically violated the separation between state ideology and medical discourse. German physicians were taught that they owed a higher duty to the ‘health of the Volk’ than to the health of individual patients. Recently, Nicolae Ceausescu’s strategy to increase the Romanian birth rate included prohibitions against giving advice to patients about the use of birth control devices and disseminating information about the use of condoms as a means of preventing the transmission of AIDS.” Berg, Toward a First Amendment Theory of Doctor-Patient Discourse and the Right To Receive Unbiased Medical Advice, 74 B. U. L. Rev. 201, 201– 202 (1994) (footnotes omitted). Further, when the government polices the content of professional speech, it can fail to “ ‘preserve an uninhibited marketplace of ideas in which truth will ultimately pre- vail.’ ” McCullen v. Coakley, 573 U. S. ___, ___–___ (2014) (slip op., at 8–9). Professionals might have a host of good- faith disagreements, both with each other and with the government, on many topics in their respective fields. Doctors and nurses might disagree about the ethics of assisted suicide or the benefits of medical marijuana; lawyers and marriage counselors might disagree about the prudence of prenuptial agreements or the wisdom of di- vorce; bankers and accountants might disagree about the amount of money that should be devoted to savings or the benefits of tax reform. “[T]he best test of truth is the power of the thought to get itself accepted in the competi- tion of the market,” Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting), and the people lose when the government is the one deciding which ideas should prevail. “Professional speech” is also a difficult category to define with precision. See Entertainment Merchants Assn., 564 14 NATIONAL INSTITUTE OF FAMILY AND LIFE ADVOCATES v. BECERRA Opinion of the Court U. S., at 791. As defined by the courts of appeals, the professional-speech doctrine would cover a wide array of individuals—doctors, lawyers, nurses, physical therapists, truck drivers, bartenders, barbers, and many others. See Smolla, Professional Speech and the First Amendment, 119 W. Va. L. Rev. 67, 68 (2016). One court of appeals has even applied it to fortune tellers. See Moore-King, 708 F.3d, at 569. All that is required to make something a “profession,” according to these courts, is that it involves personalized services and requires a professional license from the State. But that gives the States unfettered power to reduce a group’s First Amendment rights by simply imposing a licensing requirement. States cannot choose the protection that speech receives under the First Amendment, as that would give them a powerful tool to impose “invidious discrimination of disfavored subjects.” Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 423– 424, n. 19 (1993); see also Riley, 487 U.S., at 796 (“[S]tate labels cannot be dispositive of [the] degree of First Amendment protection” (citing Bigelow v. Virginia, 421 U.S. 809, 826 (1975)). C In sum, neither California nor the Ninth Circuit has identified a persuasive reason for treating professional speech as a unique category that is exempt from ordinary First Amendment principles. We do not foreclose the possibility that some such reason exists. We need not do so because the licensed notice cannot survive even inter- mediate scrutiny. California asserts a single interest to justify the licensed notice: providing low-income women with information about state-sponsored services. Assum- ing that this is a substantial state interest, the licensed notice is not sufficiently drawn to achieve it. If California’s goal is to educate low-income women about the services it provides, then the licensed notice is Cite as: 585 U. S. ____ (2018) 15 Opinion of the Court “wildly underinclusive.” Entertainment Merchants Assn., supra, at 802. The notice applies only to clinics that have a “primary purpose” of “providing family planning or pregnancy-related services” and that provide two of six categories of specific services. §123471(a). Other clinics that have another primary purpose, or that provide only one category of those services, also serve low-income women and could educate them about the State’s services. According to the legislative record, California has “nearly 1,000 community clinics”—including “federally designated community health centers, migrant health centers, rural health centers, and frontier health centers”—that “serv[e] more than 5.6 million patients . . . annually through over 17 million patient encounters.” App. 58. But most of those clinics are excluded from the licensed notice re- quirement without explanation. Such “[u]nderinclusive- ness raises serious doubts about whether the government is in fact pursuing the interest it invokes, rather than disfavoring a particular speaker or viewpoint.” Enter- tainment Merchants Assn., 564 U.S., at 802. The FACT Act also excludes, without explanation, fed- eral clinics and Family PACT providers from the licensed- notice requirement. California notes that those clinics can enroll women in California’s programs themselves, but California’s stated interest is informing women that these services exist in the first place. California has identified no evidence that the exempted clinics are more likely to provide this information than the covered clinics. In fact, the exempted clinics have long been able to enroll women in California’s programs, but the FACT Act was premised on the notion that “thousands of women remain unaware of [them].” Cal. Legis. Serv., §1(b). If the goal is to max- imize women’s awareness of these programs, then it would seem that California would ensure that the places that can immediately enroll women also provide this information. The FACT Act’s exemption for these clinics, which serve 16 NATIONAL INSTITUTE OF FAMILY AND LIFE ADVOCATES v. BECERRA Opinion of the Court many women who are pregnant or could become pregnant in the future, demonstrates the disconnect between its stated purpose and its actual scope. Yet “[p]recision . . . must be the touchstone” when it comes to regulations of speech, which “so closely touc[h] our most precious free- doms.” Button, 371 U.S., at 438. Further, California could inform low-income women about its services “without burdening a speaker with unwanted speech.” Riley, 487 U.S., at 800. Most obvi- ously, it could inform the women itself with a public- information campaign. See ibid. (concluding that a com- pelled disclosure was unconstitutional because the government could “itself publish . . . the disclosure”). Califor- nia could even post the information on public property near crisis pregnancy centers. California argues that it has already tried an advertising campaign, and that many women who are eligible for publicly-funded healthcare have not enrolled. But California has identified no evi- dence to that effect. And regardless, a “tepid response” does not prove that an advertising campaign is not a sufficient alternative. United States v. Playboy Enter- tainment Group, Inc., 529 U.S. 803, 816 (2000). Here, for example, individuals might not have enrolled in Califor- nia’s services because they do not want them, or because California spent insufficient resources on the advertising campaign. Either way, California cannot co-opt the li- censed facilities to deliver its message for it. “[T]he First Amendment does not permit the State to sacrifice speech for efficiency.” Riley, supra, at 795; accord, Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, 564 U.S. 721, 747 (2011). In short, petitioners are likely to succeed on the merits of their challenge to the licensed notice. Contrary to the suggestion in the dissent, post, at 3–4 (opinion of BREYER, J.), we do not question the legality of health and safety warnings long considered permissible, or purely factual Cite as: 585 U. S. ____ (2018) 17 Opinion of the Court and uncontroversial disclosures about commercial products. III We next address the unlicensed notice. The parties dispute whether the unlicensed notice is subject to defer- ential review under Zauderer.3 We need not decide whether the Zauderer standard applies to the unlicensed notice. Even under Zauderer, a disclosure requirement cannot be “unjustified or unduly burdensome.” 471 U.S., at 651. Our precedents require disclosures to remedy a harm that is “potentially real not purely hypothetical,” Ibanez v. Florida Dept. of Business and Professional Regu- lation, Bd. of Accountancy, 512 U.S. 136, 146 (1994), and to extend “no broader than reasonably necessary,” In re R. M. J., 455 U.S. 191, 203 (1982); accord, Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 772, n. 24 (1976); Bates v. State Bar of Ariz., 433 U.S. 350, 384 (1977); cf. Zauderer, 471 U.S., at 649 (re- jecting “broad prophylactic rules” in this area). Otherwise, they risk “chilling” protected speech.” Id., at 651. Im- portantly, California has the burden to prove that the unlicensed notice is neither unjustified nor unduly bur- densome. See Ibanez, 512 U.S., at 146. It has not met its burden. We need not decide what type of state interest is suffi- cient to sustain a disclosure requirement like the unli- censed notice. California has not demonstrated any justi- fication for the unlicensed notice that is more than “purely hypothetical.” Ibid. The only justification that the Cali- fornia Legislature put forward was ensuring that “preg- nant women in California know when they are getting —————— 3 Other than a conclusory assertion that the unlicensed notice satis- fies any standard of review, see Brief for Respondents 19, California does not explain how the unlicensed notice could satisfy any standard other than Zauderer. 18 NATIONAL INSTITUTE OF FAMILY AND LIFE ADVOCATES v. BECERRA Opinion of the Court medical care from licensed professionals.” 2015 Cal. Legis. Serv., §1(e). At oral argument, however, California denied that the justification for the FACT Act was that women “go into [crisis pregnancy centers] and they don’t realize what they are.” See Tr. of Oral Arg. at 44–45. Indeed, California points to nothing suggesting that pregnant women do not already know that the covered facilities are staffed by unlicensed medical professionals. The services that trigger the unlicensed notice—such as having “volun- teers who collect health information from clients,” “adver- tis[ing] . . . pregnancy options counseling,” and offering over-the-counter “pregnancy testing,” §123471(b)—do not require a medical license. And California already makes it a crime for individuals without a medical license to prac- tice medicine. See Cal. Bus. & Prof. Code Ann. §2052. At this preliminary stage of the litigation, we agree that petitioners are likely to prevail on the question whether California has proved a justification for the unlicensed notice.4 Even if California had presented a nonhypothetical justification for the unlicensed notice, the FACT Act unduly burdens protected speech. The unlicensed notice imposes a government-scripted, speaker-based disclosure require- ment that is wholly disconnected from California’s infor- mational interest. It requires covered facilities to post California’s precise notice, no matter what the facilities say on site or in their advertisements. And it covers a curiously narrow subset of speakers. While the licensed notice applies to facilities that provide “family planning” services and “contraception or contraceptive methods,” §123471(a), the California Legislature dropped these triggering conditions for the unlicensed notice. The unli- —————— 4 Nothing in our opinion should be read to foreclose the possibility that California will gather enough evidence in later stages of this litigation. Cite as: 585 U. S. ____ (2018) 19 Opinion of the Court censed notice applies only to facilities that primarily provide “pregnancy-related” services. §123471(b). Thus, a facility that advertises and provides pregnancy tests is covered by the unlicensed notice, but a facility across the street that advertises and provides nonprescription con- traceptives is excluded—even though the latter is no less likely to make women think it is licensed. This Court’s precedents are deeply skeptical of laws that “distinguis[h] among different speakers, allowing speech by some but not others.” Citizens United v. Federal Election Comm’n, 558 U.S. 310, 340 (2010). Speaker-based laws run the risk that “the State has left unburdened those speakers whose messages are in accord with its own views.” Sorrell, 564 U.S., at 580. The application of the unlicensed notice to advertise- ments demonstrates just how burdensome it is. The notice applies to all “print and digital advertising materials” by an unlicensed covered facility. §123472(b). These materi- als must include a government-drafted statement that “[t]his facility is not licensed as a medical facility by the State of California and has no licensed medical provider who provides or directly supervises the provision of ser- vices.” §123472(b)(1). An unlicensed facility must call attention to the notice, instead of its own message, by some method such as larger text or contrasting type or color. See §§123472(b)(2)–(3). This scripted language must be posted in English and as many other languages as California chooses to require. As California conceded at oral argument, a billboard for an unlicensed facility that says “Choose Life” would have to surround that two-word statement with a 29-word statement from the government, in as many as 13 different languages. In this way, the unlicensed notice drowns out the facility’s own message. More likely, the “detail required” by the unlicensed notice “effectively rules out” the possibility of having such a billboard in the first place. Ibanez, supra, at 146. 20 NATIONAL INSTITUTE OF FAMILY AND LIFE ADVOCATES v. BECERRA Opinion of the Court For all these reasons, the unlicensed notice does not satisfy Zauderer, assuming that standard applies. Cali- fornia has offered no justification that the notice plausibly furthers. It targets speakers, not speech, and imposes an unduly burdensome disclosure requirement that will chill their protected speech. Taking all these circumstances together, we conclude that the unlicensed notice is unjusti- fied and unduly burdensome under Zauderer. We express no view on the legality of a similar disclosure requirement that is better supported or less burdensome. IV We hold that petitioners are likely to succeed on the merits of their claim that the FACT Act violates the First Amendment. We reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion. It is so ordered. Cite as: 585 U. S. ____ (2018) 1 KENNEDY, J., concurring SUPREME COURT OF THE UNITED STATES _________________ No. 16–1140 _________________ NATIONAL INSTITUTE OF FAMILY AND LIFE ADVOCATES, DBA NIFLA, ET AL., PETITIONERS v. XAVIER BECERRA, ATTORNEY GENERAL OF CALIFORNIA, ET AL.	The California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act (FACT Act) requires clinics that primarily serve pregnant women to provide certain notices. Cal. Health & Safety Code Ann. et seq. (West 2018). Licensed clinics must notify women that California provides free or low-cost services, including abortions, and give them a phone number to call. Unlicensed clinics must notify women that California has not licensed the clinics to provide medical services. The question in this case is whether these notice requirements violate the First Amendment. I A The California State Legislature enacted the FACT Act to regulate crisis pregnancy centers. Crisis pregnancy centers—according to a report commissioned by the Cali- fornia State Assembly, App. 86—are “pro-life (largely Christian belief-based) organizations that offer a limited 2 NATIONAL INSTITUTE OF FAMILY AND LIFE ADVOCATES v. BECERRA Opinion of the Court range of free pregnancy options, counseling, and other services to individuals that visit a center.” Watters et al., Pregnancy Resource Centers: Ensuring Access and Accu- racy of Information 4 “[U]nfortunately,” the au- thor of the FACT Act stated, “there are nearly 200 licensed and unlicensed” crisis pregnancy centers in California. App. 84. These centers “aim to discourage and prevent women from seeking abortions.” The author of the FACT Act observed that crisis pregnancy centers “are commonly affiliated with, or run by organizations whose stated goal” is to oppose abortion—including “the National Institute of Family and Life Advocates,” one of the peti- tioners here. To address this perceived problem, the FACT Act imposes two notice requirements on facilities that provide pregnancy-related services—one for licensed facilities and one for unlicensed facilities. 1 The first notice requirement applies to “licensed covered facilit[ies].” Cal. Health & Safety Code Ann. To fall under the definition of “licensed covered facility,” a clinic must be a licensed primary care or specialty clinic or qualify as an intermittent clinic under California law. (citing 1206(h)). A licensed covered facility also must have the “primary purpose” of “providing fam- ily planning or pregnancy-related services.” And it must satisfy at least two of the following six requirements: “(1) The facility offers obstetric ultrasounds, obstetric sonograms, or prenatal care to pregnant women. “(2) The facility provides, or offers counseling about, contraception or contraceptive methods. “(3) The facility offers pregnancy testing or pregnancy diagnosis. “(4) The facility advertises or solicits patrons with of- Cite as: 585 U. S. (2018) 3 Opinion of the Court fers to provide prenatal sonography, pregnancy tests, or pregnancy options counseling. “(5) The facility offers abortion services. “(6) The facility has staff or volunteers who collect health information from clients.” The FACT Act exempts several categories of clinics that would otherwise qualify as licensed covered facilities. Clinics operated by the United States or a federal agency are excluded, as are clinics that are “enrolled as a Medi- Cal provider” and participate in “the Family Planning, Access, Care, and Treatment Program” (Family PACT program). To participate in the Family PACT program, a clinic must provide “the full scope of family planning services specified for the program,” Cal. Welf. & Inst. Code Ann. (West 2018), including sterilization and emergency contraceptive pills, (2). If a clinic is a licensed covered facility, the FACT Act requires it to disseminate a government-drafted notice on site. Cal. Health & Safety Code Ann. The notice states that “California has public programs that provide immediate free or low-cost access to comprehen- sive family planning services (including all FDA-approved methods of contraception), prenatal care, and abortion for eligible women. To determine whether you qualify, con- tact the county social services office at [insert the tele- phone number].” This notice must be posted in the waiting room, printed and distributed to all clients, or provided digitally at check-in. The notice must be in English and any additional languages identi- fied by state law. In some counties, that means the notice must be spelled out in 13 different lan- guages. See State of Cal., Dept. of Health Care Services, Frequency of Threshold Language Speakers in the Medi- 4 NATIONAL INSTITUTE OF FAMILY AND LIFE ADVOCATES v. BECERRA Opinion of the Court Cal Population by County for Jan. 2015, pp. 4–5 (identifying the required languages for Los Angeles County as English, Spanish, Armenian, Mandarin, Can- tonese, Korean, Vietnamese, Farsi, Tagalog, Russian, Cambodian, Other Chinese, and Arabic). The stated purpose of the FACT Act, including its li- censed notice requirement, is to “ensure that California residents make their personal reproductive health care decisions knowing their rights and the health care services available to them.” 2015 Cal. Legis. Serv. Ch. 700, (A. B. 775) (West) (Cal. Legis. Serv.). The Legislature posited that “thousands of women remain unaware of the public programs available to provide them with contracep- tion, health education and counseling, family planning, prenatal care, abortion, or delivery.” Citing the “time sensitive” nature of pregnancy-related decisions, the Legislature concluded that requiring licensed facilities to inform patients themselves would be “[t]he most effective” way to convey this information, 2 The second notice requirement in the FACT Act applies to “unlicensed covered facilit[ies].” To fall under the definition of “unlicensed covered facility,” a facility must not be licensed by the State, not have a li- censed medical provider on staff or under contract, and have the “primary purpose” of “providing pregnancy- related services.” An unlicensed covered facility also must satisfy at least two of the following four requirements: “(1) The facility offers obstetric ultrasounds, obstetric sonograms, or prenatal care to pregnant women. “(2) The facility offers pregnancy testing or pregnancy diagnosis. “(3) The facility advertises or solicits patrons with of- Cite as: 585 U. S. (2018) 5 Opinion of the Court fers to provide prenatal sonography, pregnancy tests, or pregnancy options counseling. “(4) The facility has staff or volunteers who collect health information from clients.” Clinics operated by the United States and licensed primary care clinics enrolled in Medi-Cal and Family PACT are excluded. Unlicensed covered facilities must provide a government- drafted notice stating that “[t]his facility is not li- censed as a medical facility by the State of California and has no licensed medical provider who provides or directly supervises the provision of services.” Cal. Health & Safety Code Ann. This notice must be provided on site and in all advertising materials. (3). Onsite, the notice must be posted “conspicuously” at the entrance of the facility and in at least one waiting area. It must be “at least 8.5 inches by 11 inches and written in no less than 48-point type.” In adver- tisements, the notice must be in the same size or larger font than the surrounding text, or otherwise set off in a way that draws attention to it. Like the licensed notice, the unlicensed notice must be in English and any additional languages specified by state law. Its stated purpose is to ensure “that pregnant women in California know when they are getting medical care from licensed professionals.” Cal. Legis. Serv., B After the Governor of California signed the FACT Act, petitioners—a licensed pregnancy center, an unlicensed pregnancy center, and an organization composed of crisis pregnancy centers—filed this suit. Petitioners alleged that the licensed and unlicensed notices abridge the free- dom of speech protected by the First Amendment. The District Court denied their motion for a preliminary 6 NATIONAL INSTITUTE OF FAMILY AND LIFE ADVOCATES v. BECERRA Opinion of the Court injunction. The Court of Appeals for the Ninth Circuit affirmed. National Institute of Family and Life After concluding that petition- ers’ challenge to the FACT Act was ripe,1 the Ninth Circuit held that petitioners could not show a like- lihood of success on the merits. It concluded that the licensed notice survives the “lower level of scrutiny” that applies to regulations of “professional speech.” – 842. And it concluded that the unlicensed notice satisfies any level of scrutiny. See at 843–844. We granted certiorari to review the Ninth Circuit’s decision. 583 U. S. (2017). We reverse with respect to both notice requirements. II We first address the licensed notice.2 A The First Amendment, applicable to the States through the Fourteenth Amendment, prohibits laws that abridge the freedom of speech. When enforcing this prohibition, our precedents distinguish between content-based and content-neutral regulations of speech. Content-based regulations “target speech based on its communicative content.” Reed v. Town of Gilbert, 576 U. S. (2015) (slip op., at 6). As a general matter, such laws “are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests.” This stringent standard reflects the fundamental principle that govern- —————— 1 Weagree with the Ninth Circuit’s ripeness determination. 2 Petitioners raise serious concerns that both the licensed and unli- censed notices discriminate based on viewpoint. Because the notices are unconstitutional either way, as explained below, we need not reach that issue. Cite as: 585 U. S. (2018) 7 Opinion of the Court ments have “ ‘no power to restrict expression because of its message, its ideas, its subject matter, or its content.’ ” (quoting Police Dept. of Chicago v. Mosley, 408 U.S. 92, 95 (1972)). The licensed notice is a content-based regulation of speech. By compelling individuals to speak a particular message, such notices “alte[r] the content of [their] speech.” ; accord, Turner Broadcast- ing System, ; Miami Herald Publishing (1974). Here, for example, licensed clinics must provide a government-drafted script about the availability of state- sponsored services, as well as contact information for how to obtain them. One of those services is abortion—the very practice that petitioners are devoted to opposing. By requiring petitioners to inform women how they can ob- tain state-subsidized abortions—at the same time peti- tioners try to dissuade women from choosing that option— the licensed notice plainly “alters the content” of petition- ers’ speech. at B Although the licensed notice is content based, the Ninth Circuit did not apply strict scrutiny because it concluded that the notice regulates “professional speech.” 839 F.3d, at 839. Some Courts of Appeals have recognized “profes- sional speech” as a separate category of speech that is subject to different rules. See, e.g., ; v. Brown, ; Moore- 5–570 These courts define “professionals” as indi- viduals who provide personalized services to clients and who are subject to “a generally applicable licensing and regulatory regime.” ; see also, at 8 NATIONAL INSTITUTE OF FAMILY AND LIFE ADVOCATES v. BECERRA Opinion of the Court ; “Professional speech” is then defined as any speech by these individuals that is based on “[their] expert knowledge and judgment,” at or that is “within the confines of [the] professional relationship,” So defined, these courts except professional speech from the rule that content- based regulations of speech are subject to strict scru- tiny. See at ; at 1053– 1056; Moore-, But this Court has not recognized “professional speech” as a separate category of speech. Speech is not unpro- tected merely because it is uttered by “professionals.” This Court has “been reluctant to mark off new categories of speech for diminished constitutional protection.” Denver Area Ed. Telecommunications Consortium, (KENNEDY, J., concurring in part, concurring in judgment in part, and dissenting in part). And it has been especially reluctant to “exemp[t] a category of speech from the normal prohibition on content- based restrictions.” United States v. Alvarez, U.S. 709, 722 (2012) (plurality opinion). This Court’s prece- dents do not permit governments to impose content-based restrictions on speech without “ ‘persuasive evidence of a long (if heretofore unrecognized) tradition’ ” to that effect. ). This Court’s precedents do not recognize such a tradi- tion for a category called “professional speech.” This Court has afforded less protection for professional speech in two circumstances—neither of which turned on the fact that professionals were speaking. First, our precedents have applied more deferential review to some laws that require professionals to disclose factual, noncontroversial infor- mation in their “commercial speech.” See, e.g., v. Office of Disciplinary Counsel of Supreme Court of Ohio, ; Milavetz, Gallop & Milavetz, Cite as: 585 U. S. (2018) 9 Opinion of the Court P. ; Ohralik v. Ohio State Bar Second, under our precedents, States may regulate profes- sional conduct, even though that conduct incidentally involves speech. See, e.g., ; Planned Parenthood of Southeastern (opinion of O’Connor, KENNEDY, and Souter, JJ.). But neither line of precedents is implicated here. 1 This Court’s precedents have applied a lower level of scrutiny to laws that compel disclosures in certain con- texts. In for example, this Court upheld a rule requiring lawyers who advertised their services on a contingency-fee basis to disclose that clients might be re- quired to pay some fees and –653. Noting that the disclosure requirement governed only “commercial advertising” and required the disclosure of “purely factual and uncontroversial information about the terms under which services will be available,” the Court explained that such requirements should be upheld unless they are “unjustified or unduly burdensome.” at The standard does not apply here. Most obvi- ously, the licensed notice is not limited to “purely factual and uncontroversial information about the terms under which services will be available.” 471 U.S., at ; see also (explain- ing that does not apply outside of these circum- stances). The notice in no way relates to the services that licensed clinics provide. Instead, it requires these clinics to disclose information about state-sponsored services— including abortion, anything but an “uncontroversial” topic. Accordingly, has no application here. 10 NATIONAL INSTITUTE OF FAMILY AND LIFE ADVOCATES v. BECERRA Opinion of the Court 2 In addition to disclosure requirements under this Court has upheld regulations of professional conduct that incidentally burden speech. “[T]he First Amendment does not prevent restrictions directed at commerce or conduct from imposing incidental burdens on speech,” and professionals are no exception to this rule, see Ohralik, Longstanding torts for professional mal- practice, for example, “fall within the traditional purview of state regulation of professional conduct.” NAACP v. ; but cf. (“[A] State may not, under the guise of prohibiting professional misconduct, ignore constitutional rights”). While drawing the line between speech and conduct can be difficult, this Court’s precedents have long drawn it, see, e.g., at ; Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 502 (1949), and the line is “ ‘long familiar to the bar,’ ” United (KENNEDY, J., concurring in judgment)). In Planned Parenthood of Southeastern for example, this Court upheld a law requiring physicians to obtain informed consent before they could perform an 505 U.S., at (joint opinion of O’Connor, KENNEDY, and Souter, JJ.). Pennsylvania law required physicians to inform their patients of “the nature of the procedure, the health risks of the abortion and childbirth, and the ‘probable gestational age of the unborn child.’ ” The law also required physicians to inform patients of the availability of printed materials from the State, which provided information about the child and various forms of assistance. The joint opinion in Casey rejected a free-speech chal- lenge to this informed-consent requirement. at It Cite as: 585 U. S. (2018) 11 Opinion of the Court described the Pennsylvania law as “a requirement that a doctor give a woman certain information as part of obtain- ing her consent to an abortion,” which “for constitutional purposes, [was] no different from a requirement that a doctor give certain specific information about any medical procedure.” The joint opinion explained that the law regulated speech only “as part of the practice of medicine, subject to reasonable licensing and regulation by the State.” Indeed, the requirement that a doctor obtain informed consent to perform an opera- tion is “firmly entrenched in American tort law.” Cruzan v. Director, Mo. Dept. of Health, ; see, e.g., (explaining that “a surgeon who performs an operation without his patient’s consent commits an assault”). The licensed notice at issue here is not an informed- consent requirement or any other regulation of professional conduct. The notice does not facilitate informed consent to a medical procedure. In fact, it is not tied to a procedure at all. It applies to all interactions between a covered facility and its clients, regardless of whether a medical procedure is ever sought, offered, or performed. If a cov- ered facility does provide medical procedures, the notice provides no information about the risks or benefits of those procedures. Tellingly, many facilities that provide the exact same services as covered facilities—such as general practice clinics, see not required to provide the licensed notice. The licensed notice regu- lates speech as speech. 3 Outside of the two contexts discussed above— disclosures under and professional conduct—this Court’s precedents have long protected the First Amend- ment rights of professionals. For example, this Court has 12 NATIONAL INSTITUTE OF FAMILY AND LIFE ADVOCATES v. BECERRA Opinion of the Court applied strict scrutiny to content-based laws that regulate the noncommercial speech of lawyers, see Reed, 576 U. S., at (slip op., at 10) (discussing at ); In re Primus, ; professional fund- raisers, see ; and organizations that provided specialized advice about international law, see 27–28 And the Court emphasized that the lawyer’s statements in would have been “fully protected” if they were made in a context other than advertising. 471 U.S., at 637, n. 7. Moreover, this Court has stressed the danger of content-based regulations “in the fields of medi- cine and public health, where information can save lives.” The dangers associated with content-based regulations of speech are also present in the context of professional speech. As with other kinds of speech, regulating the content of professionals’ speech “pose[s] the inherent risk that the Government seeks not to advance a legitimate regulatory goal, but to suppress unpopular ideas or infor- mation.” Turner Take medicine, for example. “Doctors help patients make deeply personal decisions, and their candor is crucial.” Woll- 848 F.3d 12, (CA11 2017) (en banc) (W. Pryor, J. concurring). Throughout history, governments have “manipulat[ed] the content of doctor-patient discourse” to increase state power and suppress minorities: “For example, during the Cultural Revolution, Chi- nese physicians were dispatched to the countryside to convince peasants to use contraception. In the 10s, the Soviet government expedited completion of a con- struction project on the Siberian railroad by ordering doctors to both reject requests for medical leave from work and conceal this government order from their Cite as: 585 U. S. (2018) 13 Opinion of the Court patients. In Nazi Germany, the Third Reich system- atically violated the separation between state ideology and medical discourse. German physicians were taught that they owed a higher duty to the ‘health of the Volk’ than to the health of individual patients. Recently, Nicolae Ceausescu’s strategy to increase the Romanian birth rate included prohibitions against giving advice to patients about the use of birth control devices and disseminating information about the use of condoms as a means of preventing the transmission of AIDS.” Berg, Toward a First Amendment Theory of Doctor-Patient Discourse and the Right To Receive Unbiased Medical Advice, 74 B. U. L. Rev. 201, 201– 202 (footnotes omitted). Further, when the government polices the content of professional speech, it can fail to “ ‘preserve an uninhibited marketplace of ideas in which truth will ultimately pre- vail.’ ” McCullen v. Coakley, U. S. – (slip op., at 8–9). Professionals might have a host of good- faith disagreements, both with each other and with the government, on many topics in their respective fields. Doctors and nurses might disagree about the ethics of assisted suicide or the benefits of medical marijuana; lawyers and marriage counselors might disagree about the prudence of prenuptial agreements or the wisdom of di- vorce; bankers and accountants might disagree about the amount of money that should be devoted to savings or the benefits of tax reform. “[T]he best test of truth is the power of the thought to get itself accepted in the competi- tion of the market,” Abrams v. United States, U.S. 616, 630 (1919) (Holmes, J., dissenting), and the people lose when the government is the one deciding which ideas should prevail. “Professional speech” is also a difficult category to define with precision. See Entertainment Merchants 564 14 NATIONAL INSTITUTE OF FAMILY AND LIFE ADVOCATES v. BECERRA Opinion of the Court U. S., at 791. As defined by the courts of appeals, the professional-speech doctrine would cover a wide array of individuals—doctors, lawyers, nurses, physical therapists, truck drivers, bartenders, barbers, and many others. See Smolla, Professional Speech and the First Amendment, One court of appeals has even applied it to fortune tellers. See Moore-, 708 F.3d, All that is required to make something a “profession,” according to these courts, is that it involves personalized services and requires a professional license from the State. But that gives the States unfettered power to reduce a group’s First Amendment rights by simply imposing a licensing requirement. States cannot choose the protection that speech receives under the First Amendment, as that would give them a powerful tool to impose “invidious discrimination of disfavored subjects.” 423– 424, n. 19 (19); see also (“[S]tate labels cannot be dispositive of [the] degree of First Amendment protection” (citing Bigelow v. Virginia, 421 U.S. 809, 826 (1975)). C In sum, neither California nor the Ninth Circuit has identified a persuasive reason for treating professional speech as a unique category that is exempt from ordinary First Amendment principles. We do not foreclose the possibility that some such reason exists. We need not do so because the licensed notice cannot survive even inter- mediate scrutiny. California asserts a single interest to justify the licensed notice: providing low-income women with information about state-sponsored services. Assum- ing that this is a substantial state interest, the licensed notice is not sufficiently drawn to achieve it. If California’s goal is to educate low-income women about the services it provides, then the licensed notice is Cite as: 585 U. S. (2018) 15 Opinion of the Court “wildly underinclusive.” Entertainment Merchants The notice applies only to clinics that have a “primary purpose” of “providing family planning or pregnancy-related services” and that provide two of six categories of specific services. Other clinics that have another primary purpose, or that provide only one category of those services, also serve low-income women and could educate them about the State’s services. According to the legislative record, California has “nearly 1,000 community clinics”—including “federally designated community health centers, migrant health centers, rural health centers, and frontier health centers”—that “serv[e] more than 5.6 million patients annually through over 17 million patient encounters.” App. 58. But most of those clinics are excluded from the licensed notice re- quirement without explanation. Such “[u]nderinclusive- ness raises serious doubts about whether the government is in fact pursuing the interest it invokes, rather than disfavoring a particular speaker or viewpoint.” Enter- tainment Merchants 564 U.S., The FACT Act also excludes, without explanation, fed- eral clinics and Family PACT providers from the licensed- notice requirement. California notes that those clinics can enroll women in California’s programs themselves, but California’s stated interest is informing women that these services exist in the first place. California has identified no evidence that the exempted clinics are more likely to provide this information than the covered clinics. In fact, the exempted clinics have long been able to enroll women in California’s programs, but the FACT Act was premised on the notion that “thousands of women remain unaware of [them].” Cal. Legis. Serv., If the goal is to max- imize women’s awareness of these programs, then it would seem that California would ensure that the places that can immediately enroll women also provide this information. The FACT Act’s exemption for these clinics, which serve 16 NATIONAL INSTITUTE OF FAMILY AND LIFE ADVOCATES v. BECERRA Opinion of the Court many women who are pregnant or could become pregnant in the future, demonstrates the disconnect between its stated purpose and its actual scope. Yet “[p]recision must be the touchstone” when it comes to regulations of speech, which “so closely touc[h] our most precious free- doms.” 371 U.S., at Further, California could inform low-income women about its services “without burdening a speaker with unwanted speech.” Most obvi- ously, it could inform the women itself with a public- information campaign. See (concluding that a com- pelled disclosure was unconstitutional because the government could “itself publish the disclosure”). Califor- nia could even post the information on public property near crisis pregnancy centers. California argues that it has already tried an advertising campaign, and that many women who are eligible for publicly-funded healthcare have not enrolled. But California has identified no evi- dence to that effect. And regardless, a “tepid response” does not prove that an advertising campaign is not a sufficient alternative. United Here, for example, individuals might not have enrolled in Califor- nia’s services because they do not want them, or because California spent insufficient resources on the advertising campaign. Either way, California cannot co-opt the li- censed facilities to deliver its message for it. “[T]he First Amendment does not permit the State to sacrifice speech for efficiency.” at ; accord, Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, 564 U.S. 721, 747 In short, petitioners are likely to succeed on the merits of their challenge to the licensed notice. Contrary to the suggestion in the dissent, post, at 3–4 (opinion of BREYER, J.), we do not question the legality of health and safety warnings long considered permissible, or purely factual Cite as: 585 U. S. (2018) 17 Opinion of the Court and uncontroversial disclosures about commercial products. III We next address the unlicensed notice. The parties dispute whether the unlicensed notice is subject to defer- ential review under3 We need not decide whether the standard applies to the unlicensed notice. Even under a disclosure requirement cannot be “unjustified or unduly burdensome.” 471 U.S., at Our precedents require disclosures to remedy a harm that is “potentially real not purely hypothetical,” and to extend “no broader than reasonably necessary,” In re R. M. J., ; accord, Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 772, n. 24 (1976); Bates v. State Bar of Ariz., 433 U.S. 350, 384 (1977); cf. (re- jecting “broad prophylactic rules” in this area). Otherwise, they risk “chilling” protected speech.” at Im- portantly, California has the burden to prove that the unlicensed notice is neither unjustified nor unduly bur- densome. See 512 U.S., at It has not met its burden. We need not decide what type of state interest is suffi- cient to sustain a disclosure requirement like the unli- censed notice. California has not demonstrated any justi- fication for the unlicensed notice that is more than “purely hypothetical.” The only justification that the Cali- fornia Legislature put forward was ensuring that “preg- nant women in California know when they are getting —————— 3 Other than a conclusory assertion that the unlicensed notice satis- fies any standard of review, see Brief for Respondents 19, California does not explain how the unlicensed notice could satisfy any standard other than 18 NATIONAL INSTITUTE OF FAMILY AND LIFE ADVOCATES v. BECERRA Opinion of the Court medical care from licensed professionals.” 2015 Cal. Legis. Serv., At oral argument, however, California denied that the justification for the FACT Act was that women “go into [crisis pregnancy centers] and they don’t realize what they are.” See Tr. of Oral Arg. at 44–45. Indeed, California points to nothing suggesting that pregnant women do not already know that the covered facilities are staffed by unlicensed medical professionals. The services that trigger the unlicensed notice—such as having “volun- teers who collect health information from clients,” “adver- tis[ing] pregnancy options counseling,” and offering over-the-counter “pregnancy testing,” not require a medical license. And California already makes it a crime for individuals without a medical license to prac- tice medicine. See Cal. Bus. & Prof. Code Ann. 052. At this preliminary stage of the litigation, we agree that petitioners are likely to prevail on the question whether California has proved a justification for the unlicensed notice.4 Even if California had presented a nonhypothetical justification for the unlicensed notice, the FACT Act unduly burdens protected speech. The unlicensed notice imposes a government-scripted, speaker-based disclosure require- ment that is wholly disconnected from California’s infor- mational interest. It requires covered facilities to post California’s precise notice, no matter what the facilities say on site or in their advertisements. And it covers a curiously narrow subset of speakers. While the licensed notice applies to facilities that provide “family planning” services and “contraception or contraceptive methods,” the California Legislature dropped these triggering conditions for the unlicensed notice. The unli- —————— 4 Nothing in our opinion should be read to foreclose the possibility that California will gather enough evidence in later stages of this litigation. Cite as: 585 U. S. (2018) 19 Opinion of the Court censed notice applies only to facilities that primarily provide “pregnancy-related” services. Thus, a facility that advertises and provides pregnancy tests is covered by the unlicensed notice, but a facility across the street that advertises and provides nonprescription con- traceptives is excluded—even though the latter is no less likely to make women think it is licensed. This Court’s precedents are deeply skeptical of laws that “distinguis[h] among different speakers, allowing speech by some but not others.” Citizens United v. Federal Election Comm’n, 558 U.S. 310, 340 Speaker-based laws run the risk that “the State has left unburdened those speakers whose messages are in accord with its own views.” 564 U.S., at 580. The application of the unlicensed notice to advertise- ments demonstrates just how burdensome it is. The notice applies to all “print and digital advertising materials” by an unlicensed covered facility. These materi- als must include a government-drafted statement that “[t]his facility is not licensed as a medical facility by the State of California and has no licensed medical provider who provides or directly supervises the provision of ser- vices.” An unlicensed facility must call attention to the notice, instead of its own message, by some method such as larger text or contrasting type or color. See This scripted language must be posted in English and as many other languages as California chooses to require. As California conceded at oral argument, a billboard for an unlicensed facility that says “Choose Life” would have to surround that two-word statement with a 29-word statement from the government, in as many as 13 different languages. In this way, the unlicensed notice drowns out the facility’s own message. More likely, the “detail required” by the unlicensed notice “effectively rules out” the possibility of having such a billboard in the first place. at 20 NATIONAL INSTITUTE OF FAMILY AND LIFE ADVOCATES v. BECERRA Opinion of the Court For all these reasons, the unlicensed notice does not satisfy assuming that standard applies. Cali- fornia has offered no justification that the notice plausibly furthers. It targets speakers, not speech, and imposes an unduly burdensome disclosure requirement that will chill their protected speech. Taking all these circumstances together, we conclude that the unlicensed notice is unjusti- fied and unduly burdensome under We express no view on the legality of a similar disclosure requirement that is better supported or less burdensome. IV We hold that petitioners are likely to succeed on the merits of their claim that the FACT Act violates the First Amendment. We reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion. It is so ordered. Cite as: 585 U. S. (2018) 1 KENNEDY, J., concurring SUPREME COURT OF THE UNITED STATES No. 16–1140 NATIONAL INSTITUTE OF FAMILY AND LIFE ADVOCATES, DBA NIFLA, ET AL., PETITIONERS v. XAVIER BECERRA, ATTORNEY GENERAL OF CALIFORNIA, ET AL.	2,131

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